Who’s really disabled? Who really deserves protection under anti-discrimination laws?
Those are the questions Costa Mesa urged the the U.S. Supreme Court to ponder as the city battles on, defending its sober living home rules against lawsuits from irate operators. Wisdom on this from the Supremes could have crystalized squishy matters of law and, as the city sees it, saved people’s lives.
But last week, the Supremes declined to take up those questions, sending the whole matter back to square one — to federal court for trial on the merits.
It’s a bit of a bummer for the city, and somewhat encouraging for the operators, but by no means suggests the city won’t prevail in the end.
Costa Mesa has gone to trial several times defending its sober home rules in similar lawsuits, and won.
Discrimination?
At issue: Costa Mesa’s laws prohibiting sex offenders, violent felons and drug dealers from operating sober living homes. The regulations require operators to provide 24/7 supervision of patients, enforce no-drug and good-neighbor policies and provide transportation to folks who leave, to prevent “curbing.” The rules also require a separation of 650 feet between sober homes, to prevent the institutionalization of residents and maintain the residential character of neighborhoods.
Sober home operators sued Costa Mesa, saying those regulations discriminate against the disabled, violating the Americans with Disabilities and Fair Housing acts. People suffering from addiction are, by law, disabled, they argued, and the city’s rules are discriminatory on their face.
U.S. District Court Judge James V. Selna disagreed. He tossed out those suits before any trial was held. He sided with the city, which argued that sober home operators had failed to prove their residents were actually, truly disabled. The operators must show, on a case-by-case basis, that each individual had “a major life activity substantially impaired by the alleged disability,” the city and judge said.
When the sober homes refused to provide such personal detail on residents, Selna tossed the suits.
The sober homes appealed to the 9th Circuit, which sided with them. The intent to serve people with disabilities was enough, it said. It sent the matter back to Selna “to consider whether the record contains evidence sufficient to establish a genuine dispute of material fact.”
The city asked the 9th Circuit to reconsider. Its decision overreaches and sets a dangerous precedent that removes accountability for sober living home operators and ultimately puts people who suffer from addiction at risk, said Seymour B. Everett III of Everett Dorey LLP, Costa Mesa’s outside attorney on these cases.
When the 9th Circuit refused to reconsider, Costa Mesa appealed to the Supreme Court. “The main point in pursuing this is that it sets the barrier for suits so low that it really will force cities to go to trial” on weak claims, costing lots of public money, city attorney Kim Barlow said in March.
On Nov. 20, the Supremes declined to hear Costa Mesa’s petition. It’s not a huge surprise: The Supreme Court typically grants fewer than 2% of the review requests it gets each year.
So now, it’s back to Selna’s courtroom for everyone to hash out the details of claims and counterclaims.
See you in court
Attorneys for the operators have said that they understand their work is cut out for them. The 9th Circuit decision was a very narrow one based on the “threshold issue” of how you establish disability, said sober home attorney Garrett Prybylo of Seyfnia & Prybylo LLP in January. “With this opinion, we essentially are now back to square one of litigation with the city.”
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It is disappointing that the Supreme Court did not agree to review the 9th Circuit Court of Appeal’s decision,” said Everett, Costa Mesa’s attorney, by email. “Despite the ruling, Costa Mesa and other cities remain committed to protecting its citizens from unscrupulous sober living home operators that target and exploit people who suffer from addiction. Without the city’s ordinance, sober living home operators are free to open homes and operate these businesses in neighborhoods without any rules or regulations, without basic regulations aimed at preventing crimes against people who suffer from addiction.”
The city simply requires basic oversight and supervision of people who suffer from a serious physical, mental and emotional illness — “the most fragile people in society that are desperate for help,” Everett said. Costa Mesa has prevailed in two trials, with both juries overwhelmingly siding with the city, agreeing that its rules aimed to protect people with addiction, not discriminate against them, he said.
It’s a rough haul, with the state of California weighing in on the side of sober home operators. Officials are mistaking a vital mental health issue — where lives are at stake — for a fair housing issue.
“People are dying at unregulated sober living homes due to a lack of medical supervision,” Everett said. “This is not a housing issue.”
Attorneys for the city point out that lawsuits haven’t been filed by individuals claiming discrimination, but by the operators of for-profit businesses standing to make more than a half-million dollars a year on a single sober home.
Costa Mesa’s regulations have borne fruit in the city, even as they’re challenged in court. Today there are far fewer addiction treatment centers and recovery homes in Costa Mesa, and far more in many other Orange County cities, than there were in 2017, according to state data. Those cities are lining up behind Costa Mesa, and filed a friend-of-the-court brief supporting it.
“While this decision is disappointing, the case may not be over just yet,” said an update from The California Sober Living and Recovery Task Force, headed by Mission Viejo. “We would like to thank the City of Costa Mesa for continuing to lead on this particular fight, as well as our fellow cities and Task Force members who joined in support of the petition with an amicus brief.”
While there may be very good sober homes out there, harmful practices in the industry have been well-documented, from tolerating or encouraging relapse (so patients can start the lucrative treatment cycle over again) to patient brokering (paying people to sign up and/or selling patients to the highest bidder), to profiteering (referring people for lab tests, treatments and services at a business where they have a financial interest).
“As found by state and federal courts and juries, the commonsense regulations advocated for by cities are not discriminatory,” said a primer by Costa Mesa attorneys. “They actually benefit the vulnerable clientele of sober living homes, who are often exploited for financial gain by the industry that is supposed to help them.”