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HomeMy WebLinkAbout2016-08-08 16-290 Council Documents (12) Pretinaherty Portland,ME Augusta,ME • John P.Doyle Jr. Concord,NHBoston,MA jdoyle@pre6.com Direct Dial:207.791.3208 Washington,DC July 21,2016 VIA E-MAIL AND U.S. MAIL Norman Heitmann,Esq. y++ City Solicitor City of Bangor 73 Harlow Street Bangor ME 04401 RE: Penobscot County Metro Treatment Center Application; ADA Considerations Dear City Solicitor Heitmann: Holly Lusk and I appreciated the opportunity to talk with you and Assistant Solicitor Niklas on July 18 and on other occasions regarding the City of Bangor's upcoming August 1 public hearing on Penobscot County Metro's application to increase its treatment capacity from 300 to 500 slots. As you are aware,Penobscot Metro has all the necessary certifications and licenses under the • state and federal government to treat up to 500 patients. The only impediment to Penobscot Metro treating the 200 additional people currently is the existence of Chapter 93 of the Bangor City Code, entitled"Chemical Dependency Treatment Facilities." i. Federal courts across the country have for the past three decades grappled with how to handle local ordinances that impede the provision of medical treatment for drug addiction as against the unequivocal anti-discrimination protections set forth in federal law. This firm has represented both clinics and municipalities in such federal lawsuits,including,most recently, CRC Health Group, Inc. v. Town of Warren. We also represented the Turning Tide clinic in Rockland in its successful effort to obtain approval from its City Council following the filing of a lawsuit in federal court. The CRC case dealt with the Town of Warren's moratorium on the siting of a Methadone clinic inside the town, and later,after the moratorium was lifted,the ordinance that Warren drafted regarding the siting of large facilities. The company that was going to open the methadone clinic sued Warren,asserting, inter alfa,that the Town's actions constituted a violation of Title II of the Americans with Disabilities Act("ADA")because the moratorium and subsequent large facility ordinance were facially and intentionally discriminatory. The last substantive decision in the case was Federal Magistrate Rich's Recommended Decision on cross summary judgment motions. I am enclosing that decision for your review. In the decision,Magistrate Rich recommends granting summary judgment against Warren on the ADA claim because of the town's enactment of ordinance provisions that constituted"intentional,facial discrimination." See Rec. Dec. at 2 and 16. Title II of the ADA prohibits discrimination against disabled persons on account of their disabilities. As Magistrate Rich points out in his recommended decision,drug addiction is an Preti Flaherty Beliveau&Pachios LLP Attorneys at Law One City Center,Portland,ME 04101 PO Box 9546,Portland,ME 04112-9546 j Tel 207.791.3000 ( www.preti.com 10764019.2 PRETI FLAHERTY Norman Heitmann,Esq. July 21,2016 • ', Page 2 impairment for purposes of ADA analysis. See Rec. Dec. at 18. Warren enacted its moratorium and subsequent large facility ordinance in order to prevent the siting of a Methadone clinic inside the town, and the court noted the municipality acted in response to constituent complaints against the individuals who would be served by the Methadone clinic. The court noted that the moratorium was enacted not out of any legitimate safety concern,but due to stereotypes about the individuals who would be provided treatment at the proposed facility. See Rec. Dec. at 20-23. Similarly,the City of Bangor's Chapter 93 Chemical Dependency Treatment Facilities ordinance treats Methadone clinics separate and apart from all other types of medical clinics and health care facilities(it also happens to include a moratorium on new clinics). On its face,the ordinance treats methadone clinics in a disparate way. It is further self-evident that ordinance was enacted out of discriminatory animus toward individuals coming to Bangor to seek medical treatment for a recognized disability under the ADA. Application of the provisions of the ordinance to deny or to limit the approval of Penobscot Metro's pending application seeking to expand its treatment slots,where it has been in the community for eleven years and fulfills all other pertinent requirements,would further constitute disparate treatment that is prohibited under the ADA. We trust you will review the CRC decision and the guidance it provides with the City Council (there also is a fair amount of case law cited in the Recommended Decision)prior to the August 1 public hearing. We remain hopeful that the Council's deliberations and ultimate decision • will be in concert with its holding and guidance,and will permit Penobscot County Metro to treat the many individuals who are waiting to receive these much needed services. Thank you for your consideration of this further filing. Sincerely, 0 P9-fiA .hn P. Doyle Jr. oily E. Lusk JPD/hel Enclosure cc: Rebecca Myers,Esq. • 10764019.2