Sober homes gain some ground in fight with Costa Mesa

Costa Mesa may have been pondering a trip to Las Vegas: It racked up win after win in court defending its controversial laws on sober living homes. The gods, it seemed, were smiling.

This month, however, that lucky streak hit a wee bump.

A panel of judges from the U.S. Court of Appeals for the 9th Circuit reversed a lower court’s ruling in the city’s favor, sending matters back for further deliberation.

The deal: Sober home operators sued Costa Mesa, saying the city’s tough new regulations discriminate against the disabled, violating of the federal Americans with Disabilities and Fair Housing acts. People suffering from addiction are, by law, disabled, they argued.

But U.S. District Court Judge James V. Selna disagreed, tossing out those suits before any trial was held. He sided with the city, which argued that sober home operators failed to prove their residents were truly disabled. The operators had to 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.

Um, no, the 9th Circuit concluded.

‘Fears and stereotypes’

“(W)e hold that courts must look at the evidence showing that the home serves or intends to serve individuals with actual disabilities on a collective basis,” not a person-by-person basis, said the opinion written by U.S. 9th District Court of Appeals Judge Mark J. Bennett (who was appointed by former President Donald Trump).

Operators did that — providing admissions criteria, house rules and testimony from workers and former residents — and also showed how “public fears and stereotypes of their residents that may have influenced the City’s perception” of who was disabled and who was not. There were also documents from Costa Mesa itself, acknowledging that the homes were meant for disabled people in recovery.

“This type of evidence… should have been considered by the district court in evaluating whether (sober home operators) established triable issues of fact,” said the opinion. “We reverse each of the district court’s grants of summary judgment and remand for the court to consider whether the record contains evidence sufficient to establish a genuine dispute of material fact.”

What that means, in English, is that the lower court does not need to see individuals’ medical records to establish disability. The homes’ intent to serve such people, via plans and pamphlets and testimony and the like, is enough.

The opinion is published, which means it doesn’t just apply in this case, but across the land. Which is sort of a big deal.

‘Dangerous’

The two sides disagree on exactly how important this is.

“The decision sets a dangerous precedent that will impact every city in Orange County, the state and country,” said Costa Mesa’s attorney, Seymour B. Everett III of Everett Dorey LLP.

By essentially taking an operator’s word for its intentions to serve disabled people, the decision “compromises the health and safety of people who suffer from addiction and will likely lead to more potentially dangerous unregulated sober living homes,” Everett said.

The attorney for the homes sees things a bit differently.

“This is a very narrow decision based on the ‘threshold issue’ ” of how you establish disability, said sober home attorney Garrett Prybylo of Seyfnia & Prybylo LLP.

“With this opinion, we essentially are now back to square one of litigation with the city. We understand we have our work cut out for us.”

A couple things could happen now: The city could ask for a re-hearing at the 9th Circuit, or could even ask the Supreme Court to step in. If it does nothing, the proverbial ball rolls back in Judge Selna’s court, where he’ll look at the meat of the complaints and decide how to proceed. The case might be tossed on some other grounds, or it might go to trial. Stand by.

The rules

Costa Mesa’s rules prohibit sex offenders, violent felons and drug dealers from operating sober homes.

They require 24/7 supervision of clients, mandate a minimum 650-foot separation between facilities, and require a special city permit, which operators say has been virtually impossible to get.

Residents must actively participate in “legitimate” recovery programs, and when people are kicked out or leave, operators must alert their emergency contacts and provide transportation so the former client doesn’t wind up on the street.

Several other cities have sober home laws modeled after Costa Mesa’s, including Anaheim, Huntington Beach and the county of Orange itself. But those cities haven’t seen as many lawsuits, Prybylo said.

“In Huntington Beach, they tend to evaluate applications in good faith, and they issue permits,” he said. “In Costa Mesa, we’ve had a different experience. It was near impossible for anyone to obtain these permits. Then we’d request reasonable accommodation — a waiver of one or two feet on the 650-foot separation requirement, or ask to walk off the measure door-to-door, rather than as the crow flies. That would be denied.”

It’s Costa Mesa’s “very aggressive enforcement” of the rules that’s the difference, he said.

“We know they have their reasons. We all know there are good and bad actors out there – our position is that the majority of them are good – but you’re telling members of your own community that they can’t live there because of where they are in their lives, because of their disability,” Prybylo said.

The city can clearly use its police powers and code enforcement powers to deal with nuisances, “but when you separate out a group of people and create requirements just for them — things that wouldn’t apply to single-family homes or even boarding houses — that’s a problem,” he said.

Costa Mesa’s attorney Everett heartily disagrees. The city has gone to full trial with two cases claiming the rules and regulations were discriminatory — and it won, with unanimous jury verdicts against the sober living homes.

“The appeal decision has nothing to do with the 650-foot spatial requirement that jurors agree prevents institutionalization of people who suffer from addiction and protects the character of the community,” Everett said. “Communities are not designed for the operation of numerous for-profit businesses in the heart of residential neighborhoods.”

It’s unfortunate that cities are still targeted and misinformation is still spread about “common sense regulations” designed to protect people — people who’ve been exploited by unscrupulous operators chasing financial gain, Everett said.

We’ll keep you posted about how this shakes out.

Source: Orange County Register