Metropolitan News-Enterprise


Wednesday, January 4, 2023


Page 1


Ninth Circuit Orders Reinstatement of Actions By Alcohol/Drug Treatment Facilities

Panel Says There Are Triable Issues as to Whether City Is Discriminating Against Persons With Disabilities


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals held yesterday that summary judgment was incorrectly awarded the City of Chula Vista in challenges to two ordinance which bar the operation of a home for recovering alcoholics and drug addicts within 650 feet of a like facility, concluding that there are triable issues as to whether the effect of the legislation is to discriminate unlawfully against persons with disabilities.

The opinion reinstates actions by the SoCal Recovery, LLC and RAW Recovery, LLC, operators of “sober living homes” that are affected by 2014 city legislation requiring that such treatment centers be licensed and regulating where they may be situated to avoid clustering in residential areas. The plaintiffs sued under the federal Americans with Disabilities Act (“ADA”), the California Fair Employment and Housing Act (“FEHA”) the provisions of which mirror those in the ADA, and the federal Fair Housing Act (“FHA”).

At issue was the applicability of the “actual disability” requirement of the statutes. A “disability” under the ADA (hence, under the FEHA) or a “handicap” under the FHA is defined as  “a physical or mental impairment that substantially limits one or more” of a person’s “major life activities.”

Individualized Evidence

In granting summary judgment in favor of the city, District Court Judge (now Senior Judge) James V. Selna held that the plaintiffs did not show that each of their residents was disabled. A Ninth Circuit panel responded yesterday that the “actual disability” requirement can be satisfied without presenting individualized evidence

Circuit Judge Mark J. Bennett authored the opinion. He declared:

“Appellants’ sober living homes and other dwellings intended for occupancy by persons recovering from alcoholism and drug addiction are protected from illegal discrimination against the disabled without the need for Appellants to present individualized evidence of the ‘actual disability’ of their residents. The district court therefore applied the incorrect legal standard in both actions when it concluded that Appellants could not establish ‘actual disability’ because they failed to present evidence of their residents’ disability status.”

‘Collective Basis’

The jurist elaborated:

“We now hold that Appellants and other sober living home operators can satisfy the ‘actual disability’ prong on a collective basis by demonstrating that they serve or intend to serve individuals with actual disabilities…. Rather, they can meet their burden by proffering admissible evidence that they have policies and procedures to ensure that they serve or will serve those with actual disabilities and that they adhere or will adhere to such policies and procedures.”

He added that the appellants “can prove the ‘actual disability’ of their current residents and any residents they seek to serve in the future through admissions criteria and house rules, testimony by employees and current residents, and testimony by former residents.”

The case is Socal Recovery, LLC v. City of Costa Mesa, 20-55820.

On June 9, 2020, a differently constituted panel affirmed the denial of SoCal’s bid for a preliminary injunction to enforce enforcement of the ordinances, saying that it had failed to show the likelihood of success on the merits.

On Oct. 9, 2020, Selna awarded the city $20,923.013 in attorney fees against SoCal, roughly 10 percent of the $209,230.13 it sought, finding that only a small portion of the action was frivolous.


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