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