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HomeMy WebLinkAbout2016-08-08 16-290 Council Documents (2) New Directions Treatment Services v.City of Reading,490 F.3d 293(2007) 19 A.D.Cases 687,35 NDLR P 1 [2] summary judgment in favor of city was precluded on KeyCite Yellow Flag-Negative Treatment clinic's claims against city for damages for denial of zoning Distinguished by Get Back Up,Inc.v.City of Detroit, 6th Cir. permit pursuant to Pennsylvania statute;and (Mich.), March 13,2015 490 F.3d 293 [3] summary judgment in favor of city was precluded on United States Court of Appeals, clinic's equal protection challenge to statute. Third Circuit. NEW DIRECTIONS TREATMENT SERVICES, Reversed and remanded. on its own behalf and on behalf of its patients; Angel Doe;Dan Coe;Joseph Joe;Louis Loe;Carlos Poe; Peter Voe,on their own West Headnotes(6) behalf and on behalf of the class,Appellants v. CITY OF READING;Vaughn Spencer,City 111 Civil Rights 4.10 Alcohol or drug use Council President,in his official capacity,and City Council Members;Angel Figueroa;George Zoning and Planning Kerns;Michael D.Schorn; Dennis Sterner; 4)". Handicapped and disabled individuals Donna Reed;Jeffrey Waltman;Casey Ganster, Pennsylvania zoning statute imposing a ban In their individual and official capacities. on the establishment of methadone clinics within 500 feet of many structures, including No.05-4353• schools, churches, and residential housing developments, was facially discriminatory in Argued: Dec.11,2006. violation of Americans with Disabilities Act (ADA) and the Rehabilitation Act; fact that Filed:June 15,200 J. statute gave municipalities power to waive the statutory ban in no way altered the fact Synopsis that statute facially singled out methadone Background:Methadone clinic and individual methadone clinics, and thereby methadone patients, for patients brought suit on constitutional and federal different treatment. Rehabilitation Act of statutory grounds, raising both facial and as applied 1973, § 504, 29 U.S.C.A. § 794; Americans challenges to Pennsylvania statute that gave the city the with Disabilities Act of 1990, §§ 202, 510(a), opportunity to vote to deny zoning permit to methadone (b)(1),42 U.S.C.A.§§ 12132, 12210(a),(b)(1); clinics. The United States District Court for the Eastern 53 P.S.§ 10621. District of Pennsylvania, Paul S. Diamond, J., 415 F.Supp.2d 501, granted summary judgment in favor of 17 Cases that cite this headnote city,and clinic appealed. 121 Civil Rights Ow Discrimination in General Holdings: The Court of Appeals, Smith, Circuit Judge, Constitutional Law held that: 0104,, Disability and Disease,Physical or Mental [l.] Pennsylvania statute imposing a ban on the Principal difference between equal protection establishment of methadone clinics within 500 feet and Americans with Disabilities Act (ADA) of many structures, including schools, churches, inquiries is that, in an as applied or facial and residential housing developments was facially equal protection challenge, the plaintiff bears discriminatory in violation of Americans with Disabilities the burden of negating all conceivable rational Act(ADA)and the Rehabilitation Act; WESTLAW C 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 New Directions Treatment Services v. City of Reading,490 F.3d 293(2007) 19 A.D.Cases 687,35 NDLR P 1 justifications for the allegedly discriminatory for denying permit for methadone clinic, action or statute,whereas to make out a claim precluding summary judgment in favor of city under the ADA, the plaintiff need only show in suit challenging validity of Pennsylvania that intentional discrimination was the but for statute imposing a ban on the establishment cause of the allegedly discriminatory action. of methadone clinics within 500 feet of many U.S.C.A. Const.Amend. 14; Americans with structures, including schools, churches, and Disabilities Act of 1990, §202, 42 U.S.C.A. § residential housing developments under equal 12132. protection clause. U.S.C.A. Const.Amend. 14; 53 P.S.§ 10621. 24 Cases that cite this headnote Cases that cite this headnote [31 Federal Civil Procedure Civil rights cases in general 161 Federal Civil Procedure Genuine issue of material fact existed as to Representation of class;typicality; whether methadone clinic's patients posed standing in general a significant risk so a to be deemed A class representative need only possess "qualified"under Americans with Disabilities a minimal degree of knowledge necessary Act (ADA) and the Rehabilitation Act, to meet the adequacy standard. Fed.Rules precluding summary judgment in favor of city Civ.Proc.Rule 23(a)(4),28 U.S.C.A. on clinic's claims against city for damages for denial of zoning permit under facially 41 Cases that cite this headnote invalid Pennsylvania statute imposing a ban on the establishment of methadone clinics within 500 feet of many structures, including schools, churches, and residential housing West Codenotes development. Rehabilitation Act of 1973, § 7(20)(C)(i), (20)(C)(ii)(I), 29 U.S.C.A. § Held Invalid 705(20)(C)(i), (20)(C)(ii)(I); Americans with 53 P.S.§ 10621 Disabilities Act of 1990, § 510(a), (b)(1), 42 Attorneys and Law Firms U.S.C.A.§ 12210(a),(b)(1); 53 P.S.§ 10621. *295 Michael Churchill, Barbara E. Ransom (argued), 17 Cases that cite this headnote Public Interest Law Center of Philadelphia,Philadelphia, PA,for Appellants. [4] Federal Civil Procedure Rights of third parties or public Steven K. Ludwig (argued), Fox Rothschild, A third-party may only assert claims based Philadelphia,PA,for Appellees. on the injuries of others to the extent that Before: SMITH and ROTH, Circuit Judges, and those who suffered the direct harm would IRENAS,District Judge. themselves have standing to sue. U.S.C.A. Const.Art. 3.§2,cl. 1. The Honorable Joseph E. Irenas, Senior District Cases that cite this headnote Judge for the United States District of New Jersey, sitting by designation. [5] Federal Civil Procedure Civil rights cases in general OPINION Genuine issue of material fact existed as to whether city met its burden of demonstrating SMITH,Circuit Judge. a legitimate, non-discriminatory purpose WESTLIM 0 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 New Directions Treatment Services v.City of Reading,490 F.3d 293(2007) 19 A.D.Cases 687,35 NDLR P 1 This case presents the familiar conflict between the legal and have emotional reactions. Most important, principle of non-discrimination and the political principle methadone relieves the craving associated with of not-in-my-backyard. New Directions Treatment heroin addiction; craving is a major reason for Services, a reputable and longstanding provider of relapse.Among methadone patients,it has been methadone treatment, sought to locate a new facility in found that normal street doses of heroin are the City of Reading. A Pennsylvania statute that facially ineffective at producing euphoria, thus making the use of heroin more easily extinguishable. singles out methadone clinics gave the City of Reading Methadone's effects last four to six times the opportunity to vote to deny the permit. The City of as long as those of heroin, so people in Reading availed itself of that opportunity. treatment need to take it only once a day.Also, methadone is medically safe even when used New Directions and individual methadone patients continuously for 10 years or more. Combined brought suit on constitutional and federal statutory with behavioral therapies or counseling and grounds, raising both facial and as applied challenges to other supportive services, methadone enables the statute. The City of Reading successfully moved for patients to stop using heroin(and other opiates) summary judgment against all of plaintiffs' claims. New and return to more stable and productive Directions and the individual plaintiffs' appeal is before lives. http://www.nida.nih. gov/researchreports/ us. heroin/heroin5.html#treatment. The Office of National Drug Control Policy(of the Executive Office of the President)provides further information on methadone treatment: I.Summary of facts and procedural history Background Information Methadone is a rigorously well-tested New Directions Treatment Services ("NDTS") operates medication that is safe and efficacious for several methadone clinics throughout Pennsylvania, the treatment of narcotic withdrawal and including one in West Reading.1 NDTS provides *297 dependence. For more than 30 years this methadone maintenance for adults who have been synthetic narcotic has been used to treat opioid addicted to heroin for at least a year. NDTS's Executive addiction. *** Director, Glen Cooper, contacted the City of Reading Methadone reduces the cravings associated ("the City") to discuss opening an additional treatment with heroin use and blocks the high from center, as their West Reading facility had developed a heroin, but it does not provide the euphoric waiting list for treatment. NDTS met with City officials rush. Consequently,methadone patients do not on January 24, 2001, to discuss potential sites within experience the extreme highs and lows that result the City. NDTS met with the City Council two months from the waxing and waning of heroin in blood later to continue the discussion.Although NDTS had not levels.Ultimately,the patient remains physically yet obtained an operating permit from the City, NDTS dependent on the opioid, but is freed from signed a ten-year lease on a property located at 700 the uncontrolled, compulsive, and disruptive Lancaster Avenue.NDTS then submitted a zoning permit behavior seen in heroin addicts. a lication. Withdrawal from methadone is much slower Pp than that from heroin. As a result, it is 1 possible to maintain an addict on methadone The National Institute on Drug Abuse (part of the without harsh side effects. Many MMT National Institutes of Health) describes methadone [methadone maintenance treatment] patients treatment: require continuous treatment,sometimes over a Methadone treatment has been used for more period of years. than 30 years to effectively and safely treat opioid Methadone maintenance treatment provides addiction. Properly prescribed methadone is the heroin addict with individualized health not intoxicating or sedating, and its effects do care and medically prescribed methadone to not interfere with ordinary activities such as relieve withdrawal symptoms,reduces the opiate driving a car. The medication is taken orally craving,and brings about a biochemical balance and it suppresses narcotic withdrawal for 24 in the body. Important elements in heroin to 36 hours. Patients are able to perceive pain WESTLAW ©2016 Thomson Reuters. No claim to original U,S. Government Works. 3 New Directions Treatment Services v.City of Reading,490 F.3d 293(2007) 19 A.D.Cases 687,35 NDLR P 1 treatment include comprehensive social and share needles and participate in at-risk sexual rehabilitation services. activity and prostitution, which are significant Availability of Treatment factors in the spread of many diseases.Research About 20% of the estimated 810,000 heroin suggests that MMT significantly decreases addicts in the United States receive MMT the rate of HIV infection for those patients (American Methadone Treatment Association, participating in MMT programs (Firshein, 1999). At present, the operating practices of 1998). clinics and hospitals are bound by Federal MMT allows patients to be free of heroin regulations that restrict the use and availability addiction. The National Institute on Drug of methadone. These regulations are explicitly Abuse found that, among outpatients receiving stated in detailed protocols established by the MMT, weekly heroin use decreased by 69%. U.S. Food and Drug Administration (FDA). This decrease in use allows for the individual's Additionally,most States have laws that control health and productivity to improve (Office of and closely monitor the distribution of this National Drug Control Policy, 1998a).Patients medication. were no longer required to live a life of crime In July 1999 the U.S. Department of Health to support their habit, and criminal activity and Human Services released a Notice of decreased by 52% among these patients. Full- Proposed Rulemaking (NPRM) for the use time employment increased by 24%. In a of methadone. For the first time in more 1994 study of drug treatment in California, than 30 years, the NPRM proposes that researchers found that rates of illegal drug use, this medication take its rightful place as a criminal activity,and hospitalization were lower clinical tool in the treatment of the heroin for MMT patients than for addicts in any other addict. Instead of its use being mandated type of drug treatment program. by regulations, programs will establish quality The Drug Abuse Treatment Outcome Study assurance guidelines and have to be accredited. (DATOS) conducted an outpatient methadone The proposed new system will allow greater treatment (OMT) evaluation examining the flexibility by the treating physician and ensure long-term effects of MMT (Hubbard et al., appropriate clinical management of the patient's 1997). The pretreatment problems consisted of needs. This proposed change in policy would weekly heroin use,no full-time employment,and eliminate most of the current regulations and illegal activity. Results of the 1—year follow- allow greater clinical discretion for treatment up showed a decrease in the number of weekly by the physician. Accreditation establishes a heroin users and a reduction in illegal activity clinical standard of care for the treatment of after OMT. There was no significant change in medical conditions. In the foreseeable future, unemployment rates. clinic and hospital programs would be accredited A Review by a national and/or State accrediting body. MMT is one of the most monitored and Responsibility for preventing the diversion of regulated medical treatments in the United methadone to illicit use will remain with the Drug States. Despite the longstanding efficacy of Enforcement Administration. MMT, only 20% of heroin addicts in the *** United States are currently in treatment. Benefits The National Institutes of Health Consensus Evidence shows that continuous MMT is Development Conference on Effective Medical associated with several other benefits. Treatment of Heroin Addiction concluded that MMT costs about$13 per day and is considered heroin addiction is a medical disorder that a cost-effective alternative to incarceration can be effectively treated in MMT programs. (Office of National Drug Control Policy,1998a). The Consensus panel recommended expanding MMT has a benefit-cost ratio of 4:1,meaning$4 access to MMT by increasing funding and in economic benefit accrues for every$1 spent on minimizing Federal and State regulations. MMT(COMPA, 1997). Further research must be conducted on factors MMT has a significant effect on the spread leading to heroin use and the differences of HIV/AIDS infection, hepatitis B and C, among various users and their ability to end tuberculosis, and sexually transmitted diseases opiate addiction before the demand for heroin (COMPA, 1997). Heroin users are known to is W ©2016 Thomson Reuters. No claim to original U.S. Government Works. 4 New Directions Treatment Services v.City of Reading,490 F.3d 293(2007) 19 A.D. Cases 687,35 NDLR P 1 addiction treatment can be effectively met by both transitional(women and their children)and increased MMT availability. permanent housing for persons with disabilities http://www.whitehousedrugpolicy.gov/ for the past twelve years. publications/factsht/m ethadone/index.html. http://www.volunteersolutions.org/uwberks/ The Lancaster Avenue property is located on a org/220334.html. Glen Cooper, the Executive commercial highway that is interspersed with 40– Director of NDTS,referred to the previous tenancy of the Berks Counseling Center at the same location 75 private residences. The Berks Counseling Center in his comments before the City Council: previously occupied the site, providing treatment to The Berks Counseling Center was in the very patients with mental health problems and drug addictions. building that we are proposing to put this facility It did not provide methadone treatment.2 NDTS in. They did exactly the same sort of work that intended to serve *298 "a couple hundred or so" we do: drug addiction treatment,mental health methadone patients at the new facility. NDTS proposed services. a 4,000 square foot addition to the property to accommodate this increased usage. NDTS planned to We found what I think is a very good site where operate the new facility from 5:30 a.m. to 6:00 p.m. on formerly heroin addicts were treated. I mean, the place that we're proposing is a former—very weekdays,as well as more limited hours on weekends. recently a former site for treating heroin addicts and mentally ill people.We're simply replacing or The website for the Berks Counseling Center,which proposing to replace the agency which left there has since relocated,describes its activities: not too long ago, replace them with our own Our mission is to provide counseling and facility.And,you know,there were no problems supportive services to enable individuals and when Berks Counseling Center was there that I'm families to achieve a healthy and more aware of.They treated the same kind of people productive lifestyle we treat.They were there for a long time. Description: In 1999, Pennsylvania adopted 53 PA. CONS.STAT. Our purpose is to offer addiction and mental health out patient treatment,case management, ANN. § 10621, a zoning statute regulating locations of supportive services,and housing.Services extend methadone treatment facilities.3 The statute provides to individuals, couples, families, adolescents that *299 "a methadone treatment facility shall not be and children. Our target population includes established or operated within 500 feet of an existing Berks County residents impacted upon by school, public playground, public park, residential chemical dependency and/or mental illness. housing area,child-care facility,church,meetinghouse or Berks Counseling Center (BCC) places a other actual place of regularly stated religious worship special emphasis on serving those persons established prior to the proposed methadone treatment who cannot access treatment elsewhere due to facility," unless, "by majority vote, the governing body financial difficulties.We believe that community for the municipality in which the proposed methadone enlightenment and family strength are key components to the prevention and reduction treatment facility is to be located votes in favor of the of drug abuse. We have a satellite site at issuance of an occupancy permit." Id. at § 10621(a)(1) the Reading/Berks Emergency Shelter in order and (b). The Lancaster Avenue property falls within the to better serve the population residing at the ambit of the statute.When NDTS inquired about sites not Shelter. covered by the statute,a City zoning official referred them History: to three sites,including a cemetery and a heavy industrial Berks Counseling Center (BCC) is a private, area,all of which NDTS considered unsuitable. non-profit corporation founded in October 1977 as Berks Youth Counseling Center. BCC 3 The statute provides,in full,that: is licensed by the State Dept. of Health, Division of Program Licensing; and the Dept. (a)(1) Notwithstanding any other provision of law to the contrary and except as provided in of Public Welfare, Office of Mental Health. subsection (b), a methadone treatment facility BCC has been providing treatment services to shall not be established or operated within 500 the residents of center city Reading for the feet of an existing school, public playground, past 25 years. Additionally, BCC has provided public park, residential housing area, child- WESTLAW Q 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 New Directions Treatment Services v.City of Reading,490 F.3d 293(2007) 19 A.D.Cases 687,35 NDLR P 1 care facility, church, meetinghouse or other methadone in the treatment, maintenance or actual place of regularly stated religious worship detoxification of persons. established prior to the proposed methadone 53 PA.CONS.STAT.ANN.§10621. treatment facility. The City notified NDTS that it would hold a hearing (2) The provisions of this subsection shall on January 14, 2002. Glen Cooper, the Executive apply whether or not an occupancy permit or certificate of use has been issued to the Director of NDTS,appeared at the hearing and described owner or operator of a methadone treatment NDTS's history and its proposed treatment center. He facility for a location that is within 500 feet also answered questions from the City Council. NDTS of an existing school,public playground,public acknowledged that it had experienced some loitering and park,residential housing area,child-care facility, littering at its West Reading facility.At a second hearing church, meetinghouse or other actual place of on February 28,2002,the Council heard additional public regularly stated religious worship established comments. At a March 25, 2002 Council meeting, the prior to the proposed methadone treatment City heard more comments and then unanimously voted facility. against NDTS's application. (b)Notwithstanding subsection(a),a methadone treatment facility may be established and NDTS filed complaints with the Pennsylvania Human operated closer than 500 feet to an existing Relations Commission ("PHRC") and the U.S. school, public playground, public park, Department of Housing and Urban Development's Office residential housing area, child-care facility, church, meetinghouse or other actual place of of Fair Housing and Equal Opportunity ("HUD"). The regularly stated religious worship established PHRC dismissed NDTS's complaint in a letter stating prior to the proposed methadone treatment that,"the facts of the case[did]not establish that probable facility if,by majority vote,the governing body cause existed] to credit the allegations of unlawful for the municipality in which the proposed discrimination." NDTS and several individual plaintiffs methadone treatment facility is to be located proceeding in pseudonym filed suit in the United States votes in favor of the issuance of an occupancy District Court for the Eastern District of Pennsylvania on permit or certificate of use for said facility at March 25,2004. such a location. At least 14 days prior to the governing body of a municipality voting on The complaint states four counts. First, NDTS alleged whether to approve the issuance of an occupancy violations of the Fourteenth Amendment guarantees of permit or certificate of use for a methadone Due Process and Equal Protection, stating that the treatment facility at a location that is closer than 500 feet to a school, public playground, public Pennsylvania statute was unconstitutional on its face park,residential housing area,child-care facility, and as applied to the proposed Reading facility. Second, church, meetinghouse or other actual place of NDTS alleged that the statute, both facially and as regularly stated religious worship established applied, violates § 504 of the Rehabilitation Act. 29 prior to the proposed methadone treatment U.S.C. § 794. Third, NDTS alleged that the statute, facility, one or more public hearings regarding both facially and as applied, violates Title II of the the proposed methadone treatment facility Americans with Disabilities Act ("ADA"). 42 U.S.C. location shall be held within the municipality § 12132. Fourth, NDTS alleged that the statute, both following public notice. All owners of real facially and as applied, contravenes the federal scheme property located within 500 feet of the proposed for regulation of methadone treatment and is therefore location shall be provided written notice of said preempted. NDTS sought declaratory and injunctive public hearings at least 30 days prior to said relief for harm resulting from the City's purportedly public hearings occurring. discriminatory action. Individual plaintiff methadone (c)This section shall not apply to a methadone treatment facility that is licensed by the users also sought damages. Department of Health prior to May 15, 1999. (d)As used in this section,the term"methadone The City moved on September 3, 2004 to dismiss treatment facility" shall mean a facility licensed individual City officials on the grounds of common by the Department of Health to use the drug law quasi-judicial immunity and qualified immunity. See FED.R.CIV.P. 12(c). The District Court granted the NfE W ©2016 Thomson Reuters. No claim to original U.S. Government Works. 6 New Directions Treatment Services v.City of Reading,490 F.3d 293(2007) 19 A.D.Cases 687,35 NDLR P 1 motion on October 17, 2004. NDTS does not appeal this Amendment, the ADA, and the Rehabilitation Act, (2) decision. that the individual plaintiffs have standing to make out ADA and Rehabilitation Act challenges,(3)that the City The City moved for partial summary judgment with violated the Equal Protection Clause of the Fourteenth respect to the fourth count of the complaint, in which Amendment, the ADA, and the Rehabilitation Act by NDTS argued on Supremacy Clause grounds that the denying NDTS a permit, and (4) that the District Court statute was preempted by federal law. The District Court abused its discretion by denying the motion for class granted the motion and dismissed the fourth count on certification. October 15,2004.NDTS does not appeal this decision. *300 NDTS and the individual plaintiffs filed the 1.Whether 53 PA.CONS.STAT.ANN.§10621 complaint as a class action and moved to certify the facially violates the ADA and the Rehabilitation Act class on September 27, 2004, as "all persons residing in the City of Reading and its surrounding community [1] NDTS and the individual plaintiffs argue that 53 who have been, are currently, or will be at risk of being PA. CONS.STAT. ANN. § 10621 facially violates the on the waiting list to receive methadone treatment; and, Equal Protection Clause of the Fourteenth Amendment, all opiate-dependant residents of the City of Reading the ADA,and the Rehabilitation Act.The District Court and its surrounding community who have needed, now did not engage in a detailed analysis of the statute's validity need or in the future may need methadone treatment." under either Title II of the ADA or the Rehabilitation See FED.R.CIV.P. 23(b)(2). The District Court denied Act. Rather, the Court focused on the Equal Protection the motion without prejudice, reasoning that the Court inquiry.4 However, *301 these inquiries are analytically lacked adequate information to determine if the individual plaintiffs could adequately represent the class. distinct and must be approached accordingly.5 The City moved for summary judgment. NDTS filed 4 The District Court first analyzed the as applied a cross-motion for partial summary judgment on their and facial challenges to the statute under the Equal claims against the validity of the statute. The District Protection Clause.The District Court held that these Court granted the City's motion in its entirety and denied claims must fail because the City had asserted rational NDTS's cross-motion on August 22, 2005. NDTS timely reasons for the permit denial and in support of the appealed. statute, including "substantial loitering and noise problems...[and]increased vehicular and pedestrian traffic, double parking, and repeated instances of patient jaywalking." H.Discussion The District Court then held that the Plaintiffs' claims under the ADA and Rehabilitation Act The District Court had jurisdiction under 28 U.S.C. § could not survive summary judgment because 1331. We have jurisdiction over an appeal from the "Plaintiffs must show that their identity as heroin District Court's final order under 28 U.S.C. § 1291. We addicts or methadone users was the sole reason for review the grant of summary judgment de novo. Union the City's decision." The City concedes that this Pat. R.R. v. Greentree Transp. Trucking Co.,293 F.3d 120 misstates our interpretation of the ADA, which (3d Cir.2002).This Court has conclusively settled that the requires that, "in pretext cases a plaintiff need proprietors of a proposed methadone treatment facility prove only that the illicit factor `played a role in the employer's decisionmaking process and that it have standing to seek relief both on their own behalf had a determinative effect on the outcome of that and on behalf of their clients under both the ADA and process.' " Newman v. GHS Osteopathic, Inc.. 60 Rehabilitation Act. See Addiction Specialists, Inc. v. Twp. F.3d 153,158(3d Cir.1995)(citing Miller v. CIGNA of Hampton, 411 F.3d 399,405-08(3d Cir.2005). Corp.. 47 F.3d 586, 598 (3d Cir.1995)); see also Baird v. Rose, 192 F.3d 462,468-70(4th Cir.1999) NDTS raises a myriad of issues on appeal. They argue (specifically rejecting the sole cause test for ADA (1) that 53 PA. CONS.STAT. ANN. § 10621 facially claims). violates the Equal Protection Clause of the Fourteenth Hof- TLAVV ©2016 Thomson Reuters. No claim to original U.S. Government Works. 7 New Directions Treatment Services v.City of Reading,490 F.3d 293(2007) 19 A.D.Cases 687,35 NDLR P 1 The District Court appears to have overlooked A statute that facially discriminates against disabled that,despite the fact that Congress has directed the individuals, however, faces a far different and more courts to construe the ADA and the Rehabilitation skeptical inquiry under the ADA and Rehabilitation Act. Act such that conflicting standards do not arise, see Bragdon v. Abbott, 524 U.S. 624, 6 118 S.Ct. 2196, 141. L.Ed.2d 540 (1998), the We noted in Newman that "courts addressing the ADA and the Rehabilitation Act are not exactly allocations of burdens of proof and persuasion under the same. The language of these two statutory the ADA uniformly have looked for guidance to Title provisions "regarding the causative link between VII." 60 F.3d at 157. The Supreme Court held in discrimination and adverse action is significantly Price Waterhouse v. Hopkins,490 U.S.228, 109 S.Ct. dissimilar."Baird, 192 F.3d at 468. Section 504 of 1775,104 L.Ed.2d 268(1989),that,for Title VII cases, the Rehabilitation Act states that "[n]o otherwise "because of"does not mean"solely because of." Id. qualified individual with a disability...shall,solely at 241, 109 S.Ct. 1775. by reason of her or his disability, be excluded from Section 12132 of Title II of the ADA provides that the participation in,be denied the benefits of,or be "[s]ubject to the provisions of this subchapter,no qualified subjected to discrimination" by specified entities. individual with a disability shall, by reason of such 29 U.S.C. § 794(a) (emphasis added). However, disability,be excluded from participation in or be denied the ADA prohibits discrimination against an the benefits of the services, programs, or activities of individual"by reason of such disability."42 U.S.C. a public entity, or be subjected to discrimination by § 12132 (emphasis added). We squarely held in Newman that this language in the ADA clearly any such entity." 42 U.S.C. § 12132. This statement establishes that the"sole reason"standard adopted constitutes a general prohibition against discrimination by by the District Court is inapplicable to the ADA, public entities,regardless of activity.7 Bay Area Addiction which requires only but for causation.See 60 F.3d Research and Treatment, Inc. v. City of Antioch, 179 at 157-158. F.3d 725. 730-31 (9th Cir.1999) (striking down a ban on 5 We address the federal statutory challenges first, methadone clinics within 500 feet of a residential *302 both because they involve a less stringent standard area). Section 504 of the Rehabilitation Act similarly and because we have an obligation not to decide provides that 143 otherwise qualified individual with constitutional questions unless necessary. See, e.g., a disability ... shall, solely by reason of her or his Spector Motor Serv. v. McLaughlin, 323 U.S. 101, disability, be excluded from the participation in, be 105,65 S.Ct. 152,89 L.Ed. 101 (1944). denied the benefits of, or be subjected to discrimination 121 The principal difference between the equal protection under any program or activity receiving Federal financial and the ADA inquiry is that, in an as applied or facial assistance." 29 U.S.C. § 794(a). We have noted that equal protection challenge, the plaintiff bears the burden "[a]s the ADA simply expands the Rehabilitation Act's of negating all conceivable rational justifications for prohibitions against discrimination into the private sector, the allegedly discriminatory action or statute, Board of Congress has directed that the two acts' judicial and Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, agency standards be harmonized"and we will accordingly 367, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), whereas to analyze the two provisions together. Newman, 60 F.3d make out a claim under the ADA,the plaintiff need only at 157-58; see also Innovative Health Sys., Inc. v. City of show that intentional discrimination was the but for cause White Plains, 117 F.3d 37.44(2d Cir.1997). of the allegedly discriminatory action. Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157-58 (3d Cir.1995).6 7 The City of Reading is a qualifying public entity.See A facially discriminatory statute based on a non-suspect 42 U.S.C.§12131(1)(A). class (such as 53 PA. CONS.STAT. ANN. § 10621) will The Sixth and Ninth Circuits have considered the survive an equal protection challenge unless it is based issue of whether a municipal ordinance prohibiting on a bare desire to harm a politically unpopular group methadone clinics within 500 feet of a residential area or"a classification whose relationship to an asserted goal violated the general proscription contained in the ADA is so attenuated as to render the distinction arbitrary or and Rehabilitation Act. See MX Group, Inc. v. City irrational." City of Cleburne v. Cleburne Living Center, of. Covington, 293 F.3d 326, 342 (6th Cir.2002); Bay 473 U.S.432,446. 105 S.Ct. 3249,87 L.Ed.2d 313 (1985). Area, 179 F.3d at 737. Both Courts concluded that WESTLAW ©2016 Thomson Reuters. No claim to original U.S. Government Works. 8 New Directions Treatment Services v.City of Reading,490 F.3d 293(2007) 19 A.D.Cases 687,35 NDLR P 1 the ordinances were "facially discriminatory laws" and law. See id. at 734-35. U.S. Department of Justice therefore "present[ed] per se violations of§ 12132." Bay regulations require that would-be plaintiffs request Area, 179 F.3d at 737;see MX Group, 293 F.3d at 342.8 reasonable modifications to avoid discrimination unless the modification *303 would fundamentally alter the 8 program, activity, ordinance, or statute. 28 C.F.R. § One District Court struck down an ordinance functionally identical to 53 PA.CONS.STAT.ANN. 35.130(b)(7). However, where the "statute discriminates § 10621. Smith Berth, Inc. v. Baltimore County, against qualified individuals on its face rather than in its Md., 115 F.Supp.2d 520, 523 (D.Md.2000). That application," the applicable regulation interpreting Title Court reasoned that a statute that facially singled II, which only requires "reasonable" accommodation, out methadone clinics imposed a disparate impact makes little sense. Bay Area, 179 F.3d at 734. The on methadone users. Although we agree with the only way to alter a facially discriminatory ordinance Sixth and Ninth Circuits that such statutes are is to remove the discriminating language. The Antioch properly analyzed as facial violations of the ADA ordinance could only have been"rendered facially neutral and Rehabilitation Act,we nevertheless concur with by expanding the class of entities that may not operate the Smith Berth Court's ultimate conclusion. The within 500 feet of a residential neighborhood to include District Court rejected the argument that a public all clinics at which medical services are provided, or hearing requirement was necessary to the local by striking the reference to methadone clinics entirely," zoning scheme. Id. at 524. The Smith Berch Court and, "[e]ither modification would fundamentally alter emphasized that there was no non-discriminatory the zoning ordinance, the former by expanding the reason to differentiate methadone treatment centers from other drug rehabilitation centers.Id. covered establishments dramatically, and the latter by rendering the ordinance a nullity." Id. Therefore, the The Ninth Circuit confronted many of the issues reasonable modifications test could not apply to a facially presented in this case when the Bay Area Addiction discriminatory ordinance. See id. at 735 (holding that Research and Treatment,Inc.("BAART")and California "facially discriminatory laws present per se violations of Detoxification Programs, Inc. ("CDP") tried to relocate § 12132"). their methadone clinic to the City of Antioch,California. Bay Area, 179 F.3d at 727. BAART had been operating The Ninth Circuit noted that this determination does a methadone clinic near the courthouse in Pittsburg, not end the inquiry, however, as both statutes withhold California for 13 years.BAART and CDP received notice protection from any "individual who poses a significant from Antioch that the proposed location could be used for risk to the health or safety of others that cannot be a methadone clinic under Antioch's zoning plan.However, ameliorated by means of a reasonable modification." the Antioch City Council enacted an urgency ordinance Id. The Supreme Court developed the significant risk banning methadone clinics within 500 feet of residential test in School Board of Nassau County v. Arline, a case areas, thereby barring use of the proposed site. BAART involving a teacher who alleged a violation of§ 504 of and other plaintiffs alleged that Antioch had violated the Rehabilitation Act after she was discharged because both Title II of the ADA and§504 of the Rehabilitation she had an active case of tuberculosis. 480 U.S. 273, Act. The District Court denied Bay Area's motion for a 276, 107 S.Ct. 1123,94 L.Ed.2d 307(1987).The Supreme preliminary injunction enjoining the ordinance. BAART Court held that "[a] person who poses a significant risk appealed.See id. of communicating an infectious disease to others in the workplace will not be otherwise qualified for his or her After disposing of issues not contested in the instant case, job if reasonable accommodation will not eliminate that the Ninth Circuit analyzed whether the District Court risk."Id.at 287 n. 16.107 S.Ct. 1123.The Court essentially had abused its discretion by denying the preliminary incorporated a significant risk test into the Rehabilitation injunction in part because BAART did not have a J Act's definition of a disabled person qualified to receive§ likelihood of success on the merits. Id. at 733. The 504's protection.The Court noted that this test effectuates Ninth Circuit held that the District Court had abused § 504's "goal of protecting handicapped individuals its discretion by applying an erroneous legal standard from deprivations based on prejudice, stereotypes, or and remanded the case. Id. The Ninth Circuit first unfounded fear, while giving appropriate weight to such held that the District Court erred by applying the legitimate concerns ... as avoiding exposing others to "reasonable modification"test to a facially discriminatory W 0 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 • New Directions Treatment Services v.Cityof Reading,490 F.3d 293 2007 9 C ) 19 A.D.Cases 687,35 NDLR P 1 significant health and safety risks." Id. at 287, 107 S.Ct. or housing accommodations. The ordinance limited the 1123. number of all such facilities to one facility for every 20,000 persons in the city.This amendment prevented MX Although the Ninth Circuit disclaimed any conclusion Group from locating a facility in the city. Id. at 330-31. about the outcome of this inquiry or the ultimate merits However,the zoning administrator testified at trial that it of the claim, it repeatedly emphasized that Arline was was his impression from the city solicitor that amendments designed to "ensure [ ] that decisions are not made on permitting individual clinics would be considered on a the basis of 'the prejudiced attitudes or the ignorance case-by-case basis. Id. at 331. MX Group brought suit of others,' " and that "this isparticularlyimportant pursuant to the ADA and Rehabilitation Act.The District s, "[t]his because, as with individuals with contagious diseases, Court held that Covington's denial of the permit and the `[f]ew aspects of a handicap give rise to the same level subsequently enacted amendment violated both federal of public fear and misapprehension,' as the challenges statutes. Id. at 328. facing recovering drug addicts." Bay Area, 179 F.3d at 736 (internal citations omitted) (citing Arline, 480 U.S. Covington alleged that the District Court had committed at 284, 107 S.Ct. 1123). The Ninth Circuit held that, various errors of law, of which only one is relevant here in order for a methadone clinic to fail the significant —whether the District Court correctly concluded that risk test, it must present "severe and likely harms to the MX Group was not required to request a reasonable community that are directly associated with the operation modification.Id at 334.The Sixth Circuit cited Bay Area of the methadone clinic." Id at 736-37. Such alleged approvingly and rejected the"reasonable accommodation harms must be supported by evidence and "may include argument because it is inapplicable inasmuch as the a reasonable likelihood of a significant increase in crime." ordinance at issue is facially discriminatory." Id. The Id. The Ninth Circuit noted that courts should be mindful Sixth Circuit noted that "the district court found that of the ADA and Rehabilitation Act's goals of eliminating the blanket prohibition of all methadone clinics from the discrimination against individuals with disabilities and entire city is discriminatory on its face,"agreed with that protecting those individuals "from deprivations based conclusion, and also agreed with the Ninth Circuit "that on prejudice, stereotypes, or unfounded fear." *304 Id. it would make little sense under these circumstances to at 737 (citing Arline, 480 U.S. at 287, 107 S.Ct. 1123). require Plaintiff to seek an accommodation,when the only Therefore, "it is not enough that individuals pose a accommodation,a fundamental change to the ordinance, hypothetical or presumed risk"—the evidence must reflect could not be considered reasonable."Id. at 335. a risk that is significant and harm that is serious.Id Although Bay Area and MX Group dealt with outright Three years later, the Sixth Circuit invoked Bay Area bans, we believe that the reasoning of those cases and reached a similar result in MX Group v. City of is equally applicable here. The Pennsylvania statute Covington. 293 F.3d 326, 344-45 (6th Cir 2002). MX imposes a ban on the establishment of methadone clinics Group is a for-profit operator of methadone clinics. Id. within 500 feet of many structures, including schools, at 328-29. In 1997, they began the process of locating churches, and residential housing developments. See 53 a suitable site for a methadone clinic in Covington, PA.CONS.STAT.ANN.§10621(a)(1).The Pennsylvania Kentucky.MX Group selected a location and Covington's law differs from those in Bay Area and MX Group in that zoning administrator issued them a permit.Public outcry the"the governing body for the municipality in which the spurred the Covington Board of to overrule proposed methadone treatment facilityis to be located" P g AdjustmentP P the issuance of the permit. MX Group located another can waive the ban if,and only if,it approves the issuance suitable site, prompting the city solicitor to inform the of a permit by majority vote.53 PA.CONS.STAT.ANN. zoning administrator that methadone clinics were not a § 10621(b). However, this ability of municipalities to permitted use anywhere in the city. Shortlythereafter, waive the statutoryban in no wayalters the fact that Yv' Y Covington adopted an amendment to the zoning code 53 PA. CONS.STAT. ANN. § 10621 facially singles out expanding the definition of"addiction treatment facility" methadone clinics, and thereby methadone patients, for in the zoning code to include any place whose primary different treatment,thereby rendering the statute facially function is to care for the chemically dependent.endent.This term discriminatory. had applied only to programs that provided overnight WESTLAW 0 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 New Directions Treatment Services v.City of Reading,490 F.3d 293(2007) 19 A.D.Cases 687,35 NDLR P 1 *305 We agree with the Sixth and Ninth Circuits that 161 F.3d 292, 295-96 (5th Cir.1998), depression, see a law that singles out methadone clinics for different EEOC v.Amego.Inc., 110 F.3d 135,143-45(1st Cir.1997), zoning procedures is facially discriminatory under the diabetes, see Turco v. Hoechst Celanese Corp., 101 F.3d ADA and the Rehabilitation Act. We also agree that it 1090, 1094(5th Cir.1996),violent employees,see Palmer v. is inappropriate to apply the "reasonable modification" Cir. Ct. of Cook County, 117 F.3d 351,353(7th Cir.1997), test to facially discriminatory laws. See MX Group, 293 or epileptics whose jobs involve operating potentially F.3d at 34'1 45; Bay Area, 179 F.3d at 734-35. The dangerous machinery. See Donahue, 224 F.3d at 231. only way to modify a facially discriminatory statute is to remove the discriminatory language.However,amending The Supreme Court emphasized in Bragdon v. Abbott 53 PA. CONS.STAT. ANN. § 10621 to remove the that the significant risk test requires a rigorous objective facial discrimination against methadone clinics would inquiry. 524 U.S. 624, 626, 118 S.Ct. 2196, 141 L.Ed.2d "fundamentally alter" the statute. Bay Area, 179 F.3d at 540(1998).In Bragdon, a dentist refused to fill a cavity for 734. an asymptomatic AIDS patient. See id. The Court held that: [3] Having concluded that 53 PA. CONS.STAT. ANN. § 10621 is facially discriminatory and that the reasonable The existence, or nonexistence, modification test does not apply, we proceed to inquire of a significant risk must be whether NDTS's clients pose a significant risk. This determined from the standpoint inquiry is also referred to as the "direct threat" defense of the person who refuses the in cases arising under Title I of the ADA. Bragdon v. treatment or accommodation, and Abbott, 524 U.S. 624, 662, 118 S.Ct. 2196, 141 L.Ed.2d the risk of assessment must be 540(1998) (Stevens, J.,concurring). The Court's analysis based on medical or other objective of the Rehabilitation Act in Arline remains the guiding evidence.... As a health care precedent. See Arline, 480 U.S. at 278-79, 107 S.Ct. 1123. professional,petitioner had the duty The Court concluded that contagious diseases such as to assess the risk of infection tuberculosis fit within the Rehabilitation Act's definition based on the objective, scientific of "handicapped," and then addressed the question of information available to him and whether the plaintiff was otherwise qualified for her job as others in his profession. His belief an elementary school teacher. Id. at 279, 107 S.Ct. 1123. that a significant risk existed, even The Court held that "[a] person who poses a significant if maintained *306 in good faith, risk of communicating an infectious disease to others in would not relieve him of liability. the workplace will not be otherwise qualified for his or her Id. at 649, 118 S.Ct. 2196. Accordingly, job if reasonable accommodation will not eliminate that we cannot base our decision on the subjective judgments of the risk."Id. at 287 n. 16, 107 S.Ct. 1123.The Court adopted people purportedly at risk, the Reading residents, City the language proposed by amicus curiae the American Council, or even Pennsylvania citizens, but must look to Medical Association, stating the significant risk inquiry objective evidence in the record of any dangers posed by should include consideration of four factors:the nature of methadone clinics and patients. The purported risk must the risk, the duration of the risk, the severity of the risk, be substantial, not speculative or remote. See id. at 649, and the probability that the potential harm will occur. 118 S.Ct. 2196 ("Because few, if any, activities in life are Donahue v. Consul. Rail Corp., 224 F.3d 226, 231 (3d risk free, Arline and the ADA do not ask whether a risk Cir.2000)(citing Arline, 480 U.S. at 288, 107 S.Ct. 1123). exists,but whether it is significant.").The Plaintiffs are not The Arline Court limited its decision to cases where a required to show that they pose no risk at all.9 See id. significant risk is alleged on the basis of an infectious disease. See 480 U.S. at 289, 107 S.Ct. 1123. The ADA 9 Although the concept of significant risk has been and subsequent cases expanded the significant risk test much more fully considered in the Title I context, to cases where a disability created a significant risk to courts have not come to an agreement in either Title the health or safety of others, such as attention deficit I or Title II cases as to where the burden lies. Some hyperactive disorder, see Robertson i. Neuromedical Ctr., courts have held that whether there is a significant risk is a factor in whether a plaintiff is"qualified"within WESTLAW 0 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 New Directions Treatment Services v.City of Reading,490 F.3d 293(2007) 19 A.D.Cases 687,35 NDLR P 1 the meaning of the statute. These courts conclude methadone patients pose a significant risk.Representative that the plaintiff bears the burden of demonstrating Platts, the bill's principal sponsor, stated that the that they do not pose a significant risk. See Rizzo v. legislation would protect "children from the high crime Children's World Learning Ctrs., Inc.. 213 F.3d 209, rates associated with heroin addicts," that, "[o]n average 213 (5th Cir.2000); EEOC v. Amego, Inc., 110 F.3d heroin addicts before treatment commit a crime on 135, 142-44(1st Cir.1997).Other courts view"direct average 200 days of the year," and that "[e]ven after 6 threat"as an affirmative defense.These courts reason months of methadone treatment,they still average once a that the burden is on the defendant to show that the plaintiff poses a significant risk. These courts note month committing *307 a crime." Representative Platts that the direct threat provision appears in a section offered no source for this statistic. We find it difficult of Title I entitled"Defenses."See Nunes v. Wal-Mart to place much weight on this unsupported statistic given Stores, Inc., 164 F.3d 1243, 1247-48 (9th Cir.1999); Cooper's unrebutted testimony that other NDTS facilities EEOC v. MC Sec. Investigations, Ltd, 55 F.3d 1276, had experienced no criminal incidents and the extremely 1283-85(7th Cir.1995). positive reports of the National Institute on Drug Abuse We have previously reserved judgment on this issue and the Office of National Drug Control Policy. In when it was"unnecessary to decide this question," addition,the statement of Representative Serafini betrays and do so again in this case as it would not affect the generalized prejudice and fear warned against by the our holding. Donahue v. Consolidated Rail Corp., Arline Court: 224 F.3d 226,230(3d Cir.2000). The record contains ample evidence that NDTS's clients, It is unfortunate that we have to and methadone patients as a class, do not pose a have methadone treatment facilities significant risk. Neither the City nor its amicus, the at all, but to locate them in areas Commonwealth, have offered any evidence to the that are residential or close to where contrary. The City refers to the deposition of Glen young people might congregate or Cooper, the Executive Director of NDTS, in which he the community might meet and estimated that 20 to 30 percent of the clinic's patients gather is a definite mistake, and would test positive for illegal drugs.However,NDTS also these facilities, in my opinion, do submitted the results of drug screens at its West Reading not benefit anyone but the heroin and Bethlehem clinics showing that only patients enrolled addict, and they should be located for less than six months test positive at the 30 percent rate, either in a community that welcomes whereas less than six percent of patients enrolled for more this kind of facility or out in an than six months test positive for illegal drugs. area away from people who have kept themselves clean and free of More importantly, the record demonstrates no link drugs and should not be confronted between methadone clinics and increased crime. Cooper by this kind of a pollution in their testified that there had been no criminal incidents at community. NDTS's West Reading facility. The Commonwealth offered no evidence to support its contrary assertion On one hand,we have before us uncontroverted testimony that there is a"frequent association"between methadone that NDTS's methadone treatment facilities have not clinics and criminal activity. In depositions, City experienced any criminal incidents or other potentially Council members expressed concerns about heavy traffic, dangerous behavior.We have the objective viewpoints of loitering, noise pollution, littering, double parking, and the National Institute on Drug Abuse and the Office of jaywalking. However, the City offered no evidence to National Drug Control Policy, brought to our attention support an association between these concerns and by amicus curiae,the Pennsylvania Community Providers methadone clinics. Even if such connections existed, we Association. On the other hand, neither the City nor are skeptical that they would qualify as the substantial amicus,the Commonwealth of Pennsylvania,offered any harms contemplated by the Arline and Bragdon Courts. evidence in the proceedings below or in the statute's legislative history demonstrating that methadone patients The brief legislative history of 53 PA. CONS.STAT. pose a significant risk. The Arline Court specifically ANN. § 10621 provides no further evidence that recognized that the Rehabilitation Act was meant to WESTLAW ©2016 Thomson Reuters. No claim to original U.S. Government Works. 12 New Directions Treatment Services v.City of Reading,490 F.3d 293(2007) 19 A.D.Cases 687,35 NDLR P 1 protect disabled individuals"from deprivations based on Plaintiffs do not argue this issue on appeal, it is prejudice, stereotypes, or unfounded fear." 480 U.S. at waived. 287, 107 S.Ct. 1123;see also Innovative Health, 117 F.3d at 49. The speculative, hypothetical, and unsupported statements in 53 PA. CONS.STAT. ANN. § 10621's 2.Whether the individual plaintiffs have standing to legislative history and in the record of the Reading City make out ADA and Rehabilitation Act challenges Council meeting do not suffice to create a triable issue of ]4] The Pennsylvania statute is facially invalid under fact as to whether NDTS's clients, or methadone patients the ADA and the Rehabilitation Act. Because of that, generally,pose a significant risk. the individual plaintiffs' standing has no impact on the issue of injunctive relief.However,the individual plaintiffs We have no doubt that some methadone patients are also assert claims to damages under the ADA and the inclined to criminal or otherwise dangerous behavior. Rehabilitation Act. The District Court must reach the However,in the words of the Arline Court: issue of the individual plaintiffs' standing in order to The fact that some persons who resolve their claims for damages.11 have contagious diseases may pose a serious health threat to others under 11 We recognized in Addiction Specialists, Inc. v. certain circumstances does not Township of Hampton that methadone clinic justify excluding from the coverage providers may assert both direct standing based of the Act all persons with actual on their own injuries and associational standing or perceived contagious diseases. based on injuries to the disabled individuals they Such exclusion would mean that serve. See 411 F.3d 399, 407(3d Cir.2005). A third- those accused of being contagious party may only assert claims based on the injuries would never have the opportunity of others to the extent that those who suffered the direct harm would themselves have standing to to have their condition evaluated in light of medical evidence and a sue. See Hunt v. Washington State Apple Adver. Cornm'n., 432 U.S. 333, 343, 97 S.Ct. 2434, 53 determination made as to whether L.Ed.2d 383 (1977). Third-party standing is closely they were "otherwise qualified." related to facial challenges, in which a single party Rather, they would be vulnerable asserts that a law is invalid not only as applied to to discrimination on the basis of them, but as applied to all parties that might come mythology—precisely the type of before the court. See Broadrick v. Oklahoma, 413 injury Congress sought to prevent. U.S. 601, 610-11, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)("Embedded in the traditional rules governing 480 U.S. at 285, 107 S.Ct. 1123. constitutional adjudication is the principle that a person to whom a statute may constitutionally be We will reverse the order of the District Court and remand applied will not be heard to challenge that statute with instructions that it grant NDTS's motion for partial on the ground that it may conceivably be applied summary judgment because 53 PA. CONS.STAT.ANN. unconstitutionally to others, in other situations not § 10621 facially violates the ADA and the Rehabilitation before the Court. A closely related principle is that Act. We need not reach the question of whether 53 PA. constitutional rights are personal and may not be CONS.STAT. ANN. § 10621 facially violates the Equal asserted vicariously." (internal citations omitted)); Protection Clause of the Fourteenth Amendment, as the United States v. Raines. 362 U.S. 17,21,80 S.Ct.519, 4 L.Ed.2d 524 (1960). But see Richard H. Fallon, statute fails the less stringent tests required by the ADA As–Applied and Facial Challenges and Third–Party and the Rehabilitation *308 Act.10 Standing, 113 HARV.L.REV.. 1321, 1359-64(2000) (examining the differences between facial challenges 10Plaintiffs argued before the District Court that§504 and third-party standing). of the Rehabilitation Act and Title II of the ADA Therefore, every individual plaintiff harmed by preempt 53 PA. CONS.STAT. ANN. § 10621. As the application of the Pennsylvania statute is not necessarily entitled to damages by virtue of NDTS's successful demonstration that the statute WESTLAW W ©2016 Thomson Reuters. No claim to original U.S. Government Works. 13 New Directions Treatment Services v.City of Reading,490 F.3d 293(2007) 19 A.D.Cases 687,35 NDLR P 1 facially violates the ADA and Rehabilitation Act. action, drug free. See id. (quoting H.R.REP. NO. 101– Individual plaintiffs may have suffered a harm 596, at 62 (1990), U.S. Code Cong. & Admin.News because the ease or timeliness of their methadone 1990, pp. 565, 570-571 (Conf.Rep.)). This provision treatment was compromised by operation of the makes its first appearance at 42 U.S.C. § 12114(a), invalid statute. However,if they are current users where it applies to Subchapter I of the ADA,concerning of illegal drugs, their statutory rights under the employment.However,this provision reappears verbatim ADA and Rehabilitation Act have not been invaded—indeed, current users of illegal drugs in "Subchapter IV: Miscellaneous Provisions," which are entirelyexempted from the ambit of the makes it applicable to the entire ADA. This perplexing P statute when the allegedly discriminatory action draftsmanship, which appears to make surplusage of was taken on the basis of that illegal drug use. the provision in the employment section, mandates that See 42 U.S.C. § 1221.0(a); 29 U.S.C. § 705(20)(C) we apply this provision to Subchapter II, 42 U.S.C. § (i). Neither NDTS's associational standing nor its 12210(a)—even though it is unclear how the provision facial challenge can secure damages for individual should apply outside the employment context. plaintiffs when they themselves have not suffered a violation of their rights and lack standing. First, NDTS contends that the appropriate time frame Therefore, the District Court should consider the for this inquiry is 2004,when it filed the complaint in the individual plaintiffs' standing under the ADA District Court, similar to a traditional standing analysis. and Rehabilitation Act and, if the District Court The City responds that the statutory text specifies that the finds that some of the individual plaintiffs lack relevant time frame is when the covered entity took its standing,it should proceed to their as-applied equal protection challenge. allegedly discriminatory action. We agree with the City The fact that some plaintiffs were not harmed inasmuch as both the ADA and Rehabilitation Act both under the ADA and Rehabilitation Act does state that an individual does not enjoy these statutory not necessarily support the facial validity of protections if "currently engaging in the illegal use of the Pennsylvania statute. If the Pennsylvania drugs, when the covered entity acts on the basis of such General Assembly had passed a statute regulating use." 42 U.S.C. § 12210(a); see 29 U.S.C. § 705(20)(C)(i) only current illegal drug users, then the ADA (same). and Rehabilitation Act could not be offended if a covered entity took action based on that Less clear is the question of whether the City "acted on drug use. However, the record makes clear that the basis of" the individual plaintiffs' addictions. See 42 methadone clinics serve a combination of current U.S.C. § 12210(a); 29 U.S.C. § 705(20)(C)(i). The City and rehabilitated drug users. asserts that it acted on the basis of non-discriminatory The parties do not dispute that recovering heroin addicts reasons,such as traffic and loitering.NDTS contends that are presumptively"qualified"persons under the ADA and the City acted on the basis of general fear and prejudice Rehabilitation Act. See 42 U.S.C. § 12131; 29 U.S.C. § associated with recovering heroin addicts. NDTS wants 794(a). However, both the ADA and the Rehabilitation to have its cake and eat it too. It claims that the City's Act contain *309 carve-outs stating that individuals are allegedly discriminatory motive does not constitute action not deemed"qualified"if they are"currently engaging in on the basis of a drug addiction, but action against the illegal use of drugs"when the"covered entity[the City] recovering addicts. However,much of the evidence in the acts on the basis of'the plaintiffs drug addiction. See 42 record to which NDTS refers illustrates the City's concern U.S.C.§12210(a);29 U.S.C.§705(20)(C)(i).Plaintiffs are about the possibility of NDTS's clients relapsing into drug not considered"qualified"under the statutes if they have use. used illegal drugs "recently enough so that continuing use is a real ongoing problem." Brown v. Lucky Stores, The ADA and Rehabilitation Act specifically provide that Inc., 246 F.3d 1182, 1188 (9th Cir.2001). This statutory a person who has completed a supervised rehabilitation exception is an odd fit for the instant case.It was intended program or is currently participating in such a program to ensure that employers could discharge employees who and"is no longer engaging" in drug use shall be deemed were actually under the influence while at work and a qualified individual.42 U.S.C.§12210(a)and(b)(1);29 that employers could not discharge employees who were U.S.C. § 705(20)(C)(i) and (C)(ii)(I). The Ninth Circuit recovering addicts but were, at the time of any personnel has observed that"[m]ere participation in a rehabilitation WE VII: 0 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 New Directions Treatment Services v.City of Reading,490 F.3d 293(2007) 19 A.D.Cases 687,35 NDLR P 1 program is not enough," and that covered entities "are Cleburne "is distinguishable because unlike [NDTS], the entitled to seek reasonable assurances that no illegal use Appellants[in Cleburne]had presented evidence that the of drugs is occurring." Brown, 246 F.3d at 1188. These decision to deny the special use permit for homes for the statutory qualifications weigh against the logic of deeming mentally retarded was based on mere negative attitudes the City to have acted solely on the basis of the plaintiffs' and fear that was unsubstantiated by factors which are status as recovering addicts—even if we accept NDTS's properly cognizable." NDTS has adduced evidence of a version of the City's motivation. similar character.The records of the City Council hearings contain numerous statements by both public participants *310 The Second Circuit has recognized that the and council members expressing opposition based on question of whether drug use is effectively ongoing or what can only be characterized as generalized prejudice, a serious problem is a fact bound inquiry best left to stereotypes,and fear of NDTS's clientele.12 the district courts. Teahan v. Metro–North Commuter R.R. C'o., 951 F.2d 511, 518-20 (2d Cir.1991). This 12 determination requires detailed knowledge of methadone The records of the three City Council hearings are replete with statements by participants illustrating the treatment protocols to assess whether a currently enrolled atmosphere of prejudice and fear that permeated the methadone patient who relapsed, for example, three proceedings.Participants stated that the new NDTS months ago,is likely to relapse again. The parties do not facility would "compromise the quality of life for dispute that one plaintiff,Coe,has been drug free for some children and families residing in this area," would time. However, three other plaintiffs, Joe, Loe, and Poe, disrupt"this stable,residential area,"would"further had been drug free for only three months prior to the decline the quality of life opportunities for families permit denial. Id. We will remand with instructions that residing in the area,"would"break[the]community the District Court closely consider whether the individual spirit," would "have a detrimental effect on the plaintiffs' drug use posed a "real ongoing problem." family spirit of the neighborhood community,"would Brown, 246 F.3d at 1188. "have a detrimental effect on the neighborhood and community businesses," and might "require additional police patrol." One participant opined that "the community would not be able to face the 3.Whether the City violated the Fourteenth additional stress brought by the treatment facility." Amendment's guarantee of Equal Protection Another participant observed that: [T]he overall community opposes the location of [5] The District Court should also consider NDTS's as the clinic on Lancaster Avenue.The community applied challenge under the Equal Protection Clause of believes that the location of the clinic in this area the Fourteenth Amendment if it finds that any of the will destroy neighborhood and family standards. individual plaintiffs lack standing under the ADA and [The community wants the]Council to recognize the Rehabilitation Act.NDTS alleges the City improperly the effect this clinic will have on their community administered 53 PA. CONS.STAT. ANN. 10621 as and property values....[I]f existing hospitals will § not accept the clinic as a tenant, the medical applied to their permit application for the Reading facility. The City replies that NDTS failed to show that prejudice profession may not believe in this type of treatment. was a motivating factor and, in the alternative, that the An attorney representing"citizens of the Millmont City met its burden of demonstrating a legitimate, non- area,"engaged in an extended colloquy with Glen discriminatory purpose. Cooper,Executive Director of NDTS,at the initial City Council hearing on January 14,2002: The parties agree that classifications based on disabled Attorney questions (Q): What do you tell individuals, such as recovering heroin addicts, are the neighborhood that you're moving in, a reviewed under the rational basis test which requires a community that you didn't investigate, the rational means to serve a legitimate end. City of Cleburne neighbors you didn't see, the residents whose v. Cleburne Living Ctr., 473 U.S. 432, 450, 105 S.Ct. property values may or may not be affected? 3249, 87 L.Ed.2d 313 (1985) (holding that the decision What do you give them to suggest in some to refuse a permit to a home for the "mentally retarded" way their kids aren't going to be affected, their failed the rational basis test). Yet the City asserts that property is not going to be affected?How do you explain that to them? WESTLAW 0 2016 Thomson Reuters. No claim to original U.S. Government Works. 15 New Directions Treatment Services v.City of Reading,490 F.3d 293(2007) 19 A.D.Cases 687,35 NDLR P 1 Cooper answers(A):Explain what? Q: Whether or not they will or will not be Appellees showed that the City's affected, their property values, if their kids will alleged concern about a drop be involved with heroin addicts or ex-addicts or in property values was irrational methadone addicts. since ARC [the operator of the A: I don't offer an explanation. I don't see that treatment centers] had operated in that's been an issue.It's never been an issue....Do the neighborhood for some years you have any evidence that that's an issue? and adduced evidence indicating Q: I suspect that common sense would tell that property values would not anybody that they're not going to purchase a be adversely affected by the house next to a methadone clinic with heroin addicts. Center's presence. Appellees also A: I'm talking about children being involved. established that the City's alleged You raised the question about children being concern with orderly development involved. Do you have any evidence? Do you was irrational since ARC was have an example? already located in the North Q:That children will be—children will be within Side Section.Additionally,appellees 500 feet. demonstrated that ARC facilities A: That wasn't my question. My question was, met lot size and other zoning Do you have evidence that that is a typical requirements and that the City's s problem in relationship to methadone treatment alleged concerns about density were facilities? addressed by density ordinances Q: I have a daughter,and I don't want her near with which ARC had complied. a methadone clinic. And finally, here as in Cleburne, A:So, ou don't have anyevidence. Y Q:I do have personal evidence.I don't want my appellees demonstrated that the City 10-year-old daughter at a methadone clinic or took its essentially unjustified action within 500 feet of a methadone clinic,if I can hel in an atmosphere charged with P it.And if I lived next to there,I would move. hostility towards a minority group. A: Well, you don't have any reason to believe, These proofs, and their lack of any statistical reason to believe,that that would contradiction by the City,lead us to be a problem. You just have a gut feeling that conclude that, in light of Cleburne, you wouldn't like it. class action plaintiffs-appellees are Q:I'd use common sense. likely to prevail on the merits of their City Council member Waltman stated "that this Equal Protection claim. method of treatment condones addiction,"and that "the City should be considering a Police substation Id. (likeningthe recoveringalcoholics'claim to that made for this area rather than a methadone clinic that will in Cleburne). compromise the stability of the community." City Council member Kerns claimed that"the potential *312 The City claims that it met its burden of showing damage a clinic could do that would break the legitimate purposes motivating its decision. The District community spirit." Court observed that the City Council expressed concerns *311 We have suggested, albeit in a different context, about heavy traffic, loitering, noise pollution, littering, that a factually similar claim would have a likelihood of double parking, and jaywalking. Yet we consider it success. See Sullivan v. City of Pittsburgh, 811 F.2d 171, inexplicable that the City failed to offer any evidence 185 (3d Cir.1987). We considered in Sullivan a request to support these concerns. Indeed, the District Court by recovering alcoholics for a preliminary injunction appears to have relied on depositions of the Council requiring issuance of a permit for the operation of a members which are not supported by the records of treatment center for alcoholics. Id. The Sullivan Court the three City Council meetings. Records of these observed that: meetings contain no reference by the Council members to jaywalking, loitering, littering, double parking, or increased traffic. The only reference appears in Cooper's WESTLAIN 0 2016 Thomson Reuters. No claim to original U.S. Government Works. 16 New Directions Treatment Services v.City of Reading,490 F.3d 293(2007) 19 A.D.Cases 687,35 NDLR P 1 response to Council member Figueroa's general question certification. The District Court's only stated reason was about "problem[s] with citizens of West Reading," to that NDTS had failed to "provid[e] Defendant with which he responded that loitering and littering problems the information necessary for Defendant to determine at its West Reading facility were minimal. The concern whether the named class representatives can represent the raised by Council member Reed in her deposition about class adequately."It is not clear what further information double parking does not account for NDTS's statement is required, as NDTS responded to all the City's requests that the new facility would have 20 off-street parking for information on the named plaintiffs, including their spaces. identities.13 The able District Judge also failed to adequately 13 consider whether any of these asserted legitimate concerns The District Court granted the individual plaintiffs' motion to proceed in pseudonym on the same day differentiated the proposed NDTS facility from permitted it denied their motion for class certification. The uses of the 700 Lancaster Avenue site. See Cleburne, District Court required only that the Defendant's 473 U.S. at 448, 105 S.Ct. 3249 (holding that the City counsel receive the individual plaintiffs' full names, of Cleburne could not treat the facility for the mentally which was duly done. retarded differently"unless [it]would threaten legitimate *313 The named plaintiffs bear the burden of showing interests of the city in a way that other permitted class eligibility and failed to file affidavits specifically in uses such as boarding houses and hospitals would support of their motion for class certification. However, not"). On remand, the District Court should consider whether asserted legitimate purposes apply equally to the District Court's denial of class certification does not provide sufficient information for us to engage permitted uses when deciding whether the purported in meaningful appellate review. We have held that legitimate purposes are pre-textual. Id. The Lancaster "[a]dequate representation depends on two factors: (a) Avenue site is zoned commercial highway and therefore the plaintiffs attorney must be qualified,experienced,and includes among its permitted uses gas stations, beer generally able to conduct the proposed litigation,and(b) distributors, convenience stores, emergency health care the plaintiff must not have interests antagonistic to those facilities, motels, nightclubs, and miniature golf courses. of the class." Wetzel v.Liberty Mut.Ins. Co.,508 F.2d 239, The prior occupant,the Berks Counseling Center,treated 247(3d Cir.1975). recovering drug and alcohol addicts as well as mentally ill patients. The record contains no evidence of complaints The City does not dispute that Plaintiffs' counsel are from nearby residents. The District Court should focus able to handle the litigation, supporting the conclusion a rticularl on whether there is anyrational reason to particularly that the class would be adequately represented. See differentiate methadone treatment centers, such as those q Y P Gravy v.Amalgamated Clothing&Textile Workers Union, operated by NDTS,from non-methadone drug treatment etc., 828 F.2d 123, 129 (3d Cir.1987) (noting that "the centers,such as the Berks Counseling Center. assurance of vigorous prosecution" by class counsel is a "significant factor" in the Rule 23(a)(4) analysis); A reasonable trier of fact could conclude, on the present Greenfield v. Villager Industries, Inc., 483 F.2d 824, 832 record, that no "reasonably conceivable state of facts .•• (3d Cir.1973) ("Experience teaches that it is counsel for could provide a rational basis" for denying NDTS's the class representative, and not the named parties, who requested permit. Bd. of Trustees of the Univ. of Ala. v. „ direct and manage these actions."). Garrett, 531 U.S. 356, 367, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). What is presented, then, is a triable issue of 161 The record is sufficiently developed to support the material fact. conclusion that the named plaintiffs could adequately represent the class. Rule 23(a)(4)'s requirement that a class representative "fairly and adequately protect the 4.Whether the District Court abused it discretion interests of the class" mainly seeks "to uncover conflicts by denying the motion for class certification. of interest between named parties and the class they seek to represent." In re Warfarin Sodium Antitrust Litig., NDTS argues that the District Court abused its discretion 391 F.3d 516, 532 (3d Cir.2004); see FED. R. CIV. by denying without prejudice their motion for class P. 23(a)(4). A class representative need only possess WESTLAW 0 2016 Thomson Reuters. No claim to original U.S. Government Works. 17 New Directions Treatment Services v.City of Reading,490 F.3d 293(2007) 19 A.D.Cases 687,35 NDLR P 1 named individual plaintiffs and the other members of the "a minimal degree of knowledge necessary to meet the adequacy standard." Szczubelek v. Cendant Mortgage putative class. However, the District Court did not rule Corp., 215 F.R.D. 107, 119 (D.N.J.2003). Conflicts of on the other Rule 23(a)factors,numerosity,commonality, interest are rare in Rule 23(b)(2)class actions seeking only and typicality. Accordingly, we will vacate the District Court's order denying the motion for class certification. declaratory and injunctive relief.14 See FED.R.CIV.P. 23(b)(2).Further discovery is unlikely to reveal any actual or potential conflict.The parties do not dispute that all of the class representatives'records were produced. III.Conclusion 14 Neither the record nor the legislative history of 53 PA. The City argues that there is doubt about whether the CONS.STAT. ANN. § 10621 contain any evidence that named plaintiffs can adequately represent the class would preserve the statute against the guarantees provided because their claims for damages"predominate"over by the ADA and the Rehabilitation Act. We will reverse their request for injunctive relief.See Allison v. Citgo the judgment of the District Court denying summary Petroleum Corp., 151 F.3d 402, 413 (5th Cir.1998). However,the individual plaintiffs seek damages only judgment for NDTS with respect to the claim that 53 for themselves, and therefore they do not implicate PA. CONS.STAT. ANN. § 10621 facially violates these possible future claims for damages by other members federal statutes and remand for further *314 proceedings of the class.Accordingly,the City's argument on this consistent with this opinion. point lacks merit. We are unable to perceive from the record or the All Citations briefs what additional information might be required to establish that there is no conflict of interest between the 490 F.3d 293, 19 A.D. Cases 687,35 NDLR P 1 End of Document ©2016 Thomson Reuters.No claim to original U.S.Government Works. WESTLAW ©2016 Thomson Reuters. No claim to original U.S. Government Works. 18 New Directions Treatment Services v.City of Reading Negative Treatment Negative Citing References(3) The KeyCited document has been negatively referenced by the following events or decisions in other litigation or proceedings: IVOW lype mow -.-rmaanditom Distinguished 1. Rocky Top,LLC v.City of South Amboy Sep. 11, Case MID Eby 2012 2012 WL 3930371 ,N.J.Super.A.D. F.3d Plaintiff Rocky Top,LLC appeals from summary judgment dismissal of its eleven-count complaint against the City of South Amboy(the City),the City's Mayor John T.O'Leary,Jr.... Distinguished 2. THW Group,LLC v.Zoning Bd.of Adjustment Mar.06,2014 Case i)♦1111 Eby 86 A.3d 330, Pa.Cmwlth. REAL PROPERTY-Zoning and Planning.Methadone F.3d clinic was a permitted use in commercial district even though clinic was not a specifically mentioned in zoning code. Distinguished 3. Get Back Up, Inc.v.City of Detroit ,3 Mar. 13,2015 Case MON by 606 Fed.Appx.792,6th Cir.(Mich.) CIVIL RIGHTS-Disabilities.Ordinance requiring residential substance abuse treatment facility to obtain conditional use permit did not discriminate against disabled persons. WESTLAW :'7 2016 Thomson Reuters, No claim to original U.S.Government Works. 19