pacific shores properties, llp, et al., v. city of newport beach filed amicus brief

Appeal Nos. 11-55460, 11-55461__________________________________________________

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

__________________________________________________

Pacific Shores Properties, LLC, et al., Plaintiffs and Appellants,

v.

City of Newport Beach, Defendant and Appellee.

__________________________________________________

Newport Coast Recovery, LLC, et al., Plaintiffs and Appellants,

v.

City of Newport Beach, Defendant and Appellee.

__________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE CENTRAL DISTRICT OF CALIFORNIA

THE HONORABLE JAMES V. SELNACASE NOS. CV 08-00457-JVS (RNBX), CV 09-00701-JVX (RNBX)

BRIEF OF AMICI CURIAE DISABILITY RIGHTS LEGAL CENTER, DISABILITY RIGHTS CALIFORNIA, WESTERN CENTER ON LAW &

POVERTY AND DISABILITY RIGHTS EDUCATION & DEFENSE FUNDIN SUPPORT OF A REVERSAL IN FAVOR OF APPELLANTS

HUNTON & WILLIAMS LLPCHRIS M. AMANTEA (CA BAR 147339)

ALEXANDREA H. YOUNG (CA BAR 233950)550 SOUTH HOPE STREET, SUITE 2000

LOS ANGELES, CA 90071TELEPHONE: (213) 532-2000FACSIMILE: (213) 532-2020

DISABILITY RIGHTS LEGAL CENTERPAULA D. PEARLMAN (CA BAR 109038)

SHAWNA L. PARKS (CA BAR 208301)UMBREEN BHATTI (NY BAR 4413407)

800 S. FIGUEROA STREET, SUITE 1120LOS ANGELES, CA 90017

TELEPHONE: (213) 736-1496FACSIMILE: (213) 736-1428

Case: 11-55460 10/11/2011 ID: 7922358 DktEntry: 12-1 Page: 1 of 33

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TABLE OF CONTENTS

Page

I. Introduction ..................................................................................................1

II. Interest of Amici Curiae................................................................................2

III. Brief Factual Background.............................................................................3

IV. The District Court Erred in Granting Summary Judgment in Favor of the City on Appellants’ ADA Discrimination Claim...............................................4

A. Facially Neutral Laws that Unduly Burden People With Disabilities, Such as the Newport Beach Ordinances at Issue, Violate the ADA.................................................................................5

B. The District Court Erred in Demanding that Appellants Establish a “Comparison” Class in Order to Prevail. ..........................6

C. Appellants Have Adequately Demonstrated the Essential Elements of Their ADA Discrimination Claim by Showing that the City Failed to Provide Them with Meaningful Access to Residential Neighborhoods Through the Use of Discriminatory Zoning Practices ............................................................................... 12

D. The Ordinances at Issue Here Deny Meaningful Access to Residential Neighborhoods to People With Disabilities, Who Have a Unique Need to Live in Supported Living Arrangements ..... 16

V. CONCLUSION .......................................................................................... 25


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TABLE OF AUTHORITIES

Page

FEDERAL CASES

Alexander v. Choate,469 U.S. 287 (1985) ......................................................................... 4, 7, 8, 9

Bay Area Addiction Research & Treatment, Inc. v. City of Antioch,179 F.3d 725 (9th Cir. 1999) ...................................................................... 13

Crowder v. Kitagawa,81 F.3d 1480 (9th Cir. 1996) .......................................................... 4, 6, 8, 16

Dare v. State of California Dept. of Motor Vehicles,191 F.3d 1167 (9th Cir. 1999) .................................................................. 4, 7

Groome Resources Ltd. v. Parish of Jefferson,234 F.3d 192 (5th Cir. 2000) ...................................................................... 15

Henrietta D. v. Bloomberg,331 F.3d 261 (2d Cir. 2003) .........................................................................7

McGary v. City of Portland,386 F.3d 1259 (9th Cir. 2004) ............................................................. passim

Olmstead v. L.C. ex rel. Zimring,527 U.S. 581 (1999) ............................................................................ passim

Rodde v. Bonta,357 F.3d 988 (9th Cir. 2004) .................................................................. 9, 11

Weinreich v. Los Angeles County Metropolitan Transp. Authority,114 F.3d 976 (9th Cir. 1997) ...................................................................... 12

STATE CASES

Schloendorff v. Society of the New York Hosp.,105 N.E. 92 (N.Y. 1914)............................................................................. 22


TABLE OF AUTHORITIES(continued)

Page

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FEDERAL STATUTES

28 C.F.R. § 35.104 ............................................................................................... 13

28 C.F.R. § 35.130(g) ........................................................................................... 13

42 U.S.C. § 12101(a)(5) .........................................................................................5

42 U.S.C. §§ 12101-12213 ................................................................................... 13

42 U.S.C. § 12132 ............................................................................................ 6, 12

OTHER AUTHORITIES

Douglas E. Miller, The Fair Housing Act, Oxford House, and the Limits of Local Control over the Regulation of Group Homes for Recovering Addicts, 36 WM. & MARY L. REV. 1467 (1995) .......................................... 19

Douglas L. Polcin & Diane Henderson, A Clean and Sober Place to Live: Philosophy, Structure, and Purported Therapeutic Factors in Sober Living Houses, 40 J. PSYCHOACTIVE DRUGS. 153 (2008) ............................ 18

Douglas L. Polcin, Rachael Korcha, Jason Bond, & Gantt Galloway, Eighteen-Month Outcomes for Clients Receiving Combined Outpatient Treatment and Sober Living Houses, 15 J. SUBSTANCE USE352 (2010) ............................................................................................ 19, 20

Ellen MacEachen & Hugh Munby, Developmentally Disabled Adults in Community Living: The Significance of Personal Control, 6QUALITATIVE HEALTH RESEARCH 71 (1996) ............................................... 23

Kevin C. Heslin, Alison B. Hamilton, Trudy K. Singzon, James L. Smith, & Nancy Lois Ruth Anderson, Alternative Families in Recovery: Fictive Kin Relationships Among Residents of Sober Living Homes, 21QUALITATIVE HEALTH RESEARCH (2011).............................................. 20, 21


TABLE OF AUTHORITIES(continued)

Page

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NAT’L COUNCIL ON DISABILITY, OLMSTEAD: RECLAIMING INSTITUTIONALIZED LIVES 47 (2003).......................................................................................... 23

Peter Carlson, The Oxford House Experiment, Nov. 12, 1989, WASH. POST(Magazine), at W15 .................................................................................... 18

R. J. Stancliffe, K. C. Lakin, S. Larson, J. Engler, S. Taub & J. Fortune, Choice of Living Arrangements, 55 J. INTELLECTUAL DISABILITY RESEARCH 746 (2011)........................................................................... 23, 24

Scott Spreat & James W. Conroy, Community Placement for Persons with Significant Cognitive Challenges: An Outcome Analysis, 26 JASH 106 (2001) ............................................................................................ 24, 25

Tia E. Martinez & Martha R. Burt, Impact of Permanent Supportive Housing on the Use of Acute Care Health Services by Homeless Adults, 57 PSYCHIATRIC SERVS. 992 (2006) ................................................ 24

Timothy Cook, The Americans With Disabilities Act: The Move to Integration, 64 TEMPLE L. REV. 393 (1991).......................................... 17, 22


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I. Introduction

The City of Newport Beach (“City”) enacted certain zoning ordinances that

deliberately discriminate against people recovering from drug and alcohol

addiction. The City’s actions denied people with disabilities meaningful access to

beneficial housing in the residential community of their choice. In the court below,

Appellants sober-living homes1 and their residents demonstrated the City’s

violations of multiple laws including the Americans with Disabilities Act

(“ADA”). Amici Curiae urge the Court to find that the District Court erred in

requiring Appellants to proffer evidence that a similarly situated non-disabled

individual was treated differently in order to sustain their ADA intentional

discrimination claim, and thus improperly granted summary judgment in favor of

the City.2

1 Sober living homes are alcohol and drug-free residences for unrelated adults who are recovering from substance addictions. Sober living homes do not provide any formal medical treatment services, though they may mandate attendance at 12-step groups. In addition to sober living homes, there are other types of supported living arrangements that are affected by the ordinance. We refer to them collectively as “supported living arrangements.” In these supported living situations, individuals with disabilities, including those recovering from substance abuse, choose to live as a family with unrelated adults in an environment that provides specific supports for their unique disability related needs. These homes may or may not be regulated or licensed, depending on the specific nature of the services. All of these living arrangements are affected by the ordinances.2 The filing of this Amicus Curiae brief is permitted pursuant to FED. R. APP. P. 29(a), as all parties have consented to its filing.


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The District Court improperly evaluated the City’s conduct only under the

narrow framework that required a showing of a similarly situated non-disabled

individual or group. When a facially neutral statute is alleged to violate the ADA

it must be analyzed by assessing whether people with disabilities are denied

meaningful access to state-provided benefits because of their unique needs. This

inquiry focuses on the requirements of the ADA, not on any other “comparison”

class or individual. Under this analysis, the City’s conduct violates the ADA.

II. Interest of Amici Curiae

Amici Curiae Disability Rights Legal Center, Disability Rights California,

Western Center on Law and Poverty and Disability Rights Education & Defense

Fund (collectively “amici”) are interested in this appeal because, under well-

established law, the challenged zoning ordinances enacted by the City are

discriminatory towards individuals with disabilities. Amici are substantially

interested in reversing the lower court ruling because, inter alia, (1) the District

Court erred in requiring Appellants to demonstrate that a similarly situated non-

disabled individual or group was treated differently to maintain their ADA

intentional discrimination claim; and (2) the challenged ordinances have harmed

and will continue to harm many clients, members and communities that amici

serve and represent.3

3 A brief description of each amicus organization is attached as Exh. 1.


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Among the amici are authorities on community-based care, including

organizations that help people with disabilities obtain the critical services and

support they need to live independently. Amici are also authorities on the

pervasive discrimination faced by people with disabilities, such as the Appellants

in this case. With their expertise and experience, amici can assist the Court in

understanding the correct legal standard and the benefits and importance of

supported living arrangements and sober living homes in helping residents with

disabilities to live in neighborhoods of their choice.

III. Brief Factual Background

In January 2008, the Newport Beach City Council enacted an ordinance that

effectively prohibited sober living homes from operating in residential areas. They

accomplished this by defining “single housekeeping unit” to ensure that sober

living homes would not qualify and would instead fall within the definition of

“residential care facility.” Then, the City prohibited “residential care facilities”

from locating in any residential zone except the “MFR” district, which is zoned for

multi-family residential usage, and then only with a permit.4 If an already-existing

sober living home failed to obtain a permit under the onerous and lengthy

application process, it was required to be shut down.

4 Excerpts of Record (“ER”) Volume 22, pg. 5458 [hereinafter “[volume number]ER:[page number]”].


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As Appellants are operators of, or residents in, sober living homes, the effect

of Ordinance 2008-5 on them is substantial: since its passage, no new sober living

homes, licensed or unlicensed, have opened in the City.5 Moreover, as of one year

after passage of Ordinance 2008-5, only two of the 62 sober living homes subject

to Ordinance 2008-5 were able to and had obtained use permits to remain in

operation.6 Just as the City expected when it adopted these discriminatory

ordinances, the number of housing opportunities in sober living homes is

drastically reduced.7

IV. The District Court Erred in Granting Summary Judgment in Favor of the City on Appellants’ ADA Discrimination Claim

The District Court wrongfully granted the City’s motion for summary

judgment by erroneously requiring a showing of a non-disabled comparison class

from Appellants, contrary to established case law.8 The “meaningful access”

standard established by the United States Supreme Court, and followed by the

Ninth Circuit, clearly forecloses such a requirement and the District Court was

bound to apply this standard to the Appellants’ ADA discrimination claim.9

5 19ER:4712.6 16ER:4147; 19ER:4791-92.7 16ER:4080, 4145-46; 19:ER:4789, 4711-12, 4790-91.8 Dare v. State of California Dept. of Motor Vehicles, 191 F.3d 1167, 1171 (9th Cir. 1999) (citing Alexander v. Choate, 469 U.S. 287 (1985)).9 Choate, 469 U.S. at 301, Crowder v. Kitagawa, 81 F.3d 1480, 1484 (9th Cir. 1996); McGary v. City of Portland, 386 F.3d 1259, 1267 (9th Cir. 2004); Dare, 191 F.3d at 1171.


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In the court below, Appellants established that because of the carefully

crafted ordinances by the City, they were denied meaningful access to single-

family neighborhoods. As supported by social science research, medicine, and

law, the freedom to choose one’s housing situation, including a supported living

arrangement that meets one’s disability related needs, and still live in the same

low-density part of the community as all other individuals, provides the best

avenue for individuals with disabilities to gain independence and achieve a better

quality of life.10 The City provides the benefit of living in low-density residential

neighborhoods, and Appellants were severely restricted in the location of the

recovery services they need. Appellants have unique needs related to their

disabilities and thus were unduly burdened by the discriminatory ordinances, and

the District Court’s decision must be reversed.

A. Facially Neutral Laws that Unduly Burden People With Disabilities, Such as the Newport Beach Ordinances at Issue, Violate the ADA

The ADA has, as its principal underlying objectives, the elimination of both

“outright intentional exclusion” as well as “the discriminatory effects of

architectural, transportation, and communication barriers, overprotective rules and

policies, [and] failure to make modifications to existing facilities and practices.”11

Title II of the ADA therefore prohibits not only overt discrimination against

10 Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 588 (1999) (plurality).11 42 U.S.C. § 12101(a)(5).


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individuals with disabilities, but also forms of discrimination—including facially

neutral laws—that deny people with disabilities meaningful access to public

services, such as the Newport Beach ordinances at issue here.12 As the Ninth

Circuit has directly stated: “We have repeatedly recognized that facially neutral

policies may violate the ADA when such policies unduly burden disabled persons,

even when such policies are consistently enforced.”13

B. The District Court Erred in Demanding that Appellants Establish a “Comparison” Class in Order to Prevail

The lower court incorrectly required evidence of a comparison non-disabled

class. In doing so, the District Court failed to recognize that the ADA and the Fair

Housing Act require different legal analyses.14 Quite simply, the District Court

failed to consider the correct legal standards that were presented to it15 and

therefore came to an incorrect result. When presented with facially neutral laws,

such as the City’s zoning ordinances at issue here, a court must determine whether

individuals with disabilities are denied meaningful access to public programs,

12 See 42 U.S.C. § 12132; Olmstead, 527 U.S. at 581; Crowder, 81 F.3d at 1483-84 (holding that Hawaii’s facially neutral 120-day quarantine for all carnivorous animals entering Hawaii disproportionately burdened visually-impaired persons, because of their unique dependence on guide dogs, and thereby denied them meaningful access to state services). 13 McGary, 386 F.3d at 1265.14 1ER:51. Amici understand that the court’s Fair Housing Act analysis also is challenged on appeal; this brief does not address the court’s interpretation of the Fair Housing Act.15 See, e.g., 12ER:2874-75.


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services, and activities.16 There is a denial of “meaningful access” when (1)

persons with disabilities are disproportionately burdened due to their unique needs,

or (2) a public entity fails to provide reasonable accommodations for disabled

persons. A “reasonable accommodation” is one way that a public entity can

provide the requisite “meaningful access” to its programs or services.17

The United States Supreme Court has rejected the District Court’s

“comparative” approach to determining, under the ADA, whether an individual

was discriminated against because of his or her disability. In Olmstead v. L.C. ex

rel. Zimring, the Court rejected the suggestion that a discrimination claim under

the ADA necessitates a showing of a “comparison class” that was treated

differently:

Nor were [the plaintiffs] subjected to “discrimination,” the State contends, because “‘discrimination’ necessarily requires uneven treatment of similarly situated individuals,” and [plaintiffs] had identified no comparison class, i.e., no similarly situated individuals given preferential treatment. We are satisfied that Congress had a more comprehensive view of the concept of discrimination advanced in the ADA.18

The Olmstead decision flowed from the earlier articulation of the

“meaningful access” test formulated by the United States Supreme Court in

16 Choate, 469 U.S. 287; McGary, 386 F.3d at 1267; Dare, 191 F.3d at 1171.17 Henrietta D. v. Bloomberg, 331 F.3d 261, 282 (2d Cir. 2003) (“A reasonable accommodation is one that gives the otherwise qualified plaintiff with disabilities ‘meaningful access’ to the program or services sought.”). 18 Olmstead, 527 U.S. at 598 (emphasis added).


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Choate.19 In Choate, the Supreme Court held that a court should consider whether

the allegedly discriminatory, facially neutral statute prevents “meaningful access to

the benefit that the grantee offers.”20

This Court has consistently followed this approach. In Crowder v.

Kitagawa, the Court held that with respect to facially neutral laws, courts must

determine whether individuals are denied “meaningful access” to programs,

services, and activities.21 In Crowder, this Court held that a facially neutral and

uniformly enforced Hawaii law requiring a 120-day quarantine on carnivorous

animals entering the state violated the ADA because it “burden[ed] visually-

impaired persons in a manner different and greater than it burden[ed] others.”22 In

doing so, the Crowder Court explained that the United States Supreme Court had

previously determined that judicial review of each instance of disability

discrimination as to whether it was better classified as deliberate or disparate

impact discrimination would be overly burdensome and it was “more useful to

19 Choate, 469 U.S. 287.20 Id. at 301. Though Choate interpreted the Rehabilitation Act, “[t]he legislative history of the ADA indicates that Congress intended judicial interpretation of the Rehabilitation Act be incorporated by reference when interpreting the ADA.” Crowder, 81 F.3d at 1484 (internal citation omitted).21 Crowder, 81 F.3d at 1484.22 Id.


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assess whether disabled persons were denied ‘meaningful access’ to state-provided

services.”23

Relying on Crowder, the Ninth Circuit in Rodde v. Bonta upheld a

preliminary injunction precluding Los Angeles County from closing a hospital

dedicated primarily to providing rehabilitative services to individuals with

disabilities.24 Because no other facility in the County could provide comparable

services, the Court held that “the closure of [the facility] would deny certain

disabled individuals meaningful access to government-provided services because

of their unique needs, while others would retain access to the same class of

services.”25 State action that denies persons with disabilities meaningful access to

government-provided services, or disproportionately burdens people with

disabilities because of their unique needs, is actionable under the ADA.

It is this well-established “meaningful access” test that the District Court

failed to apply. The District Court stated:

Plaintiffs have not identified, and the Court has not found, any case in which a facially neutral statute that was passed with anintent to discriminate against a protected class was found to be invalid without an accompanying showing of either actual disparate treatment of others similarly situated or disparate impact on a protected class.26

23 Id. (citing Choate, 469 U.S. at 302) (emphasis added).24 Rodde v. Bonta, 357 F.3d 988 (9th Cir. 2004).25 Id. at 998.26 1ER:57.


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Thus, the Court failed to utilize the test set out in Olmstead, Choate, Dare,

Crowder, Rodde, and similar cases.

Amici agree with Appellants that a party does not need to establish the

existence of a comparison class in order to make out an intentional discrimination

claim. However, as explained above, courts have invalidated facially neutral

statutes regardless of intent when they place a lopsided burden on people with

disabilities. Indeed, this Court has held that requiring the demonstration of un-

equal treatment to sustain an ADA discrimination claim “eviscerates [a]

fundamental purpose of the ADA.”27

In McGary v. City of Portland, this Court held that evidence of similarly-

situated non-disabled persons that were treated differently is not a requirement of

an ADA discrimination claim. There, the plaintiff alleged that the city violated the

ADA as its nuisance abatement policy burdened him in a manner different and

greater than others due to his disability when it denied him an extension to clean

his yard.28 The Court explained that the lower court had dismissed the plaintiff’s

ADA claim on the ground that he failed to allege facts indicating that the defendant

city had acted “by reason of” his disability “since non-disabled residents were also

subject to the nuisance abatement ordinance.”29 The district court required that the

27 McGary, 386 F.3d at 1266.28 Id. at 1265.29 Id.


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plaintiff demonstrate “that a non-disabled neighbor with a yard in similar condition

to plaintiff’s was given an extension of time.”30 The Ninth Circuit found that the

district court erred in doing so, and that the Court has “repeatedly recognized that

facially neutral policies may violate the ADA when such policies unduly burden

disabled persons, even when such policies are consistently enforced.”31

Governmental actions, such as the Newport Beach ordinances at issue here, which

“disproportionately burdens people with disabilities because of their unique needs

[is] actionable under the ADA.”32

The evidence in this case is sufficient to raise a genuine issue of material

fact that the City of Newport Beach’s zoning ordinances—though facially

neutral—denied Appellants meaningful access to benefits due to their disabilities.

Appellants are not required to proffer evidence that a non-disabled resident was

“zoned out” in order to allege or sustain their ADA discrimination claim. Yet, like

the lower court in McGary, the District Court here improperly required that

Appellants demonstrate that they were treated differently than similarly situated

non-disabled persons. The law as laid out in McGary, Choate, Olmstead, Crowder

and Rodde compels reversal.

30 Id.31 Id. (internal citation omitted) (emphasis added).32 Rodde v. Bonta, 357 F.3d 988, 995 (9th Cir. 2004).


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C. Appellants Have Adequately Demonstrated the Essential Elements of Their ADA Discrimination Claim by Showing that the City Failed to Provide Them with Meaningful Access to Residential Neighborhoods Through the Use of Discriminatory Zoning Practices

Appellants demonstrated each of the required elements of their ADA

discrimination claim. To state a claim of disability discrimination under Title II of

the ADA, a plaintiff must establish three elements: (1) he is a qualified individual

with a disability; (2) he was either excluded from participation in or denied the

benefits of a public entity’s services, programs or activities, or was otherwise

discriminated against by the public entity; and (3) such exclusion, denial of

benefits, or discrimination was by reason of his disability.33 In the court below, the

Appellants demonstrated that they were consistently denied meaningful access to

residing in low-density residential neighborhoods integrated into the Newport

Beach community, due to their disabilities and their unique needs for a supported

living arrangement related to their disabilities.

As a threshold matter, the parties do not dispute that Appellants are disabled

within the meaning of the ADA.34 Individuals recovering from drug or alcohol

addiction are considered disabled within the meaning of the ADA as they have an

impairment that substantially limits one or more major life activities in its own

33 Weinreich v. Los Angeles County Metropolitan Transp. Authority, 114 F.3d 976, 978 (9th Cir. 1997) (internal citations and quotations omitted); see also 42 U.S.C. § 12132. 34 1ER:47.


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right or as a result of the attitudes of others toward such impairment.35 Moreover,

each of the Appellants is an aggrieved person under the ADA because they were

excluded from participating in or were denied the benefits of public services, due

to their disabilities, by the discriminatory acts committed by the City. These

discriminatory practices include: enacting and enforcing the ordinance with the

intent or effect of discriminating against persons with disabilities, restricting

Appellants’ housing choices to certain zoning districts, demanding different permit

requirements for disabled housing, failing to make or delaying reasonable

accommodations, selectively enforcing land use requirements, and otherwise

making housing for people with disabilities unavailable.36

It is also undisputed that Title II applies to zoning, such that the challenged

zoning practices of the City of Newport Beach at issue here are indeed “services,

programs or activities” within the meaning of the ADA.37 The record before the

District Court exhibits overwhelming evidence that Appellants were consistently

denied meaningful access to residential neighborhoods, especially low-density

residential neighborhoods, integrated into the Newport Beach community, and

35 42 U.S.C. §§ 12101-12213; 28 C.F.R. § 35.104.36 1ER:130-32, 148, 174-76, 192-93. Appellant entities have standing to bring this action. “A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.” 28 C.F.R. § 35.130(g) (emphasis added). 37 Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730-732 (9th Cir. 1999).


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because of their unique needs were unduly burdened by this denial. Under

Ordinance 2008-05, residential care “facilities,” as overinclusively defined by the

City, are no longer permitted in any residential zones except for multi-family

(MFR), and then only with a use permit.38 People with disabilities who need the

recovery components of a supported living environment are unduly burdened by

the City’s Ordinance severely restricting the location of those services to high-

density areas and also requiring them to submit to a lengthy and onerous permit

process.

“Meaningful access” is denied when people with disabilities are

disproportionately burdened due to their unique needs, or when a public entity fails

to provide reasonable accommodations for them. Appellants also demonstrated

that the City failed to provide reasonable accommodations, and in fact intentionally

made it more difficult for them to achieve a reasonable accommodation. Appellant

Pacific Shores made a reasonable accommodation request on the form required by

the City in September 2008.39 The first public hearing was conducted over six

months later, after Pacific Shores had responded to the City’s demand for further

information.40 The Hearing Officer denied Pacific Shores’ reasonable

accommodation requests, but indicated that a request which reduced the number of

38 22ER:5458. 39 6ER:1352.40 6ER:1352-54.


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residents might be granted in the future.41 Pacific Shores appealed to the City

Council, and the matter was set for hearing almost nine months after Pacific

Shores’ first appearance before the Hearing Officer.42 After much disagreement

about how much profit Pacific Shores should be allowed to have, in March 2010, a

year and one-half after applying for the reasonable accommodation and three

public hearings later, Pacific Shores received an accommodation allowing it to

operate only two houses with up to 12 residents each, far short of its operating

capacity.43

Delay and imposition of overly restrictive conditions, such as that engaged

in by the City here, on a reasonable accommodation request amounts to a

constructive denial.44 The Ordinance sets no timeline for reasonable

accommodation decisions, therefore rendering it defective for an additional reason.

A reasonable accommodation procedure is separate from zoning applications and

requires a prompt decision. That did not occur here, and will not under the City’s

current stance of doing everything possible to prevent Appellants from operating

and living within the community of Newport Beach.

41 2ER:393; 6ER:1358, 1437. 42 6ER:1427.43 6ER:1363.44 See, e.g., Groome Resources Ltd. v. Parish of Jefferson, 234 F.3d 192 (5th Cir. 2000).


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Appellants demonstrated that people with disabilities lack meaningful access

to supported living arrangements in residential neighborhoods due to the City’s

intentional attempt to zone out these living arrangements and block them from

obtaining permits. A genuine issue of material fact exists as to whether the City

violated the ADA by enacting, enforcing and failing to provide reasonable

accommodations to the challenged ordinances.

D. The Ordinances at Issue Here Deny Meaningful Access to Residential Neighborhoods to People With Disabilities, Who Have a Unique Need to Live in Supported Living Arrangements

The benefits and necessity of shared housing in the community for people

with disabilities—especially those recovering from alcohol, drug, and other

addictions—are undisputed.45 The specific support functions of the sober living

setting satisfy the unique needs of persons with disabilities who are recovering

from addiction and substance abuse, just like a service animal supports the unique

needs of a blind person.46 For more than 50 years, the overwhelming trend in care

for people with disabilities has been toward community integration, in large part

through arrangements like sober living homes and similar supported living

arrangements. The language and intent of the ADA rejects now-discredited

practices of housing people with disabilities only in segregated settings, and

reflects a national commitment to autonomy, independence, and quality of life for

45 Olmstead, 527 U.S. at 588.46 Crowder, 81 F.3d at 1484.


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people with disabilities. Experts endorse sober living homes as fully embracing

these values, and promoting better outcomes for residents.

The ADA’s legislative history makes clear that when Congress passed the

law in 1990, the nation had moved from relying on large, custodial institutions to a

new appreciation of the value of community-based care. One noted commentator

observed:

Such facilities have been judicially recognized as being among “the most isolated and restrictive” and “almost totally impersonal” settings in which a person can live. . . . [O]nce there, the residents lose “the basic rights that [persons without disabilities] take for granted, like choosing where they live, who they live with, what they eat, when to eat, [and] who their friends are . . . .”47

Indeed, the importance of choice, and control in one’s living situation for

people with disabilities cannot be overstated, nor can the benefits of living in the

community. In the U.S. Supreme Court’s landmark decision in Olmstead,48 for

example, Justice Ginsberg began by noting Congressional findings that

“historically, society has tended to isolate and segregate individuals with

disabilities, and, despite some improvements, such forms of discrimination against

47 Timothy Cook, The Americans With Disabilities Act: The Move to Integration, 64 TEMPLE L. REV. 393, 412 (1991) (Exh. 2).48 527 U.S. 581.


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individuals with disabilities continue to be a serious and pervasive social

problem.”49

Sober living homes have existed in the United States for many years. The

earliest models of sober living homes began in the 1830s and were run by religious

institutions, including the YMCA, YWCA, and Salvation Army.50 Residents in

these homes had little input into operations of the facilities, and their landlords

frequently encouraged attendance at religious services. After World War II, with

the increase in population of many metropolitan areas and more widespread

alcohol related problems, recovering Alcoholics Anonymous members opened

“twelfth step” houses to address the need for alcohol- and drug-free living

environments. By the 1960s, there were several dozen such houses in Los

Angeles.

In 1975, lawyer and recovering alcoholic Paul Molloy founded Oxford

House.51 The house was self-governed and ran on two simple rules: no resident

could drink or take drugs, and each resident had to work and pay rent to stay.52

Additional homes on the Oxford House model were established mainly in the

49 Id. at 588.50 Douglas L. Polcin & Diane Henderson, A Clean and Sober Place to Live: Philosophy, Structure, and Purported Therapeutic Factors in Sober Living Houses,40 J. PSYCHOACTIVE DRUGS. 153, 154 (2008) (Exh. 3). 51 Peter Carlson, The Oxford House Experiment, Nov. 12, 1989, WASH. POST(Magazine), at W15 (Exh. 4).52 Id.


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Washington, D.C., area, until in the late 1980s, Molloy succeeded in getting

federal block grants made contingent upon state support for self-governing

supported living arrangements.53 Over the next several years, more than 500 such

homes were established in 35 states.54 Many sober living homes in California are

affiliated with associations or coalitions, including the California Association of

Addiction Recovery Resources in the northern part of the state and the Sober

Living Network in the south.55

In a recent study of sober living home residents over an 18 month period,

researchers noted that regardless of the referring source of the residents, they

showed improvement at a 6 month follow-up in a variety of areas, including

substance use, and work.56 At 12 and 18 month follow-ups, most of those

improvements persisted.57 The magnitude of improvements was tremendous. “For

example, relative to baseline, residents at 6 months were 16 and one-half times

likely to report being abstinent. By 18 months the odds ratio dropped to 6.5, but

53 Douglas E. Miller, The Fair Housing Act, Oxford House, and the Limits of Local Control over the Regulation of Group Homes for Recovering Addicts, 36 WM. &MARY L. REV. 1467, 1476 (1995) (Exh. 5).54 Id. 55 Id.56 Douglas L. Polcin, Rachael Korcha, Jason Bond, & Gantt Galloway, Eighteen-Month Outcomes for Clients Receiving Combined Outpatient Treatment and Sober Living Houses, 15 J. SUBSTANCE USE 352, 355 (2010) (Exh. 6).57 Id. at 359.


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was still highly significant.”58 Importantly, residents were able to retain their

improvements even after leaving the sober living homes.59

The researchers in that study pointed to three important characteristics of

sober living homes: residents are free to stay as long as they like, provided they

meet the home’s rules and expectations; residents finance them through fees,

thereby inoculating themselves from the effects of state and local budget cuts; and

residents are involved in the management of the house, which generates a sense of

resident empowerment and commitment.60 For individuals also involved in

outpatient programs, sober living homes are especially important. Indeed, “[t]he

lack of a living environment that supports sustained recovery is a major obstacle to

successful treatment of substance use disorders in outpatient programs.”61

The anthropological concept of “fictive kinship” generally refers to “the use

of kinship terminology to connote close relationships between people who are not

related by biology or legal status.”62 Fictive kinship often involves co-residence,

58 Id.59 Id. The researchers noted that areas where residents entered with moderate to high severity but did not improve were medical, psychiatric, and family problems. The researchers noted the need for further investigation to understand why, and suggested that “one potential factor might be that problems in these areas might reflect chronic conditions that are not easily improved.” Id. at 363.60 Id. at 353-54. 61 Id. at 364. 62 Kevin C. Heslin, Alison B. Hamilton, Trudy K. Singzon, James L. Smith, & Nancy Lois Ruth Anderson, Alternative Families in Recovery: Fictive Kin


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economic interdependency, and mutual obligations to provide care.63 “Sober living

homes typically aim to create such networks among residents in part by instituting

house rules and general expectations for mutually supportive behavior.”64 In

studies, participants have used the metaphor of family to convey the importance of

the role of their fellow sober living home residents.65 In a study conducted as part

of a partnership between faculty at the Charles Drew University and members of

the Los Angeles County Sober Living Coalition, involving residents of 25 sober

living houses, researchers concluded that “[b]eyond shelter, [sober living home]s

meet critical needs for caretaking and social support that might otherwise result in

increased demands on our already strained public-sector health and social services

system,” and noted that the ADA and Fair Housing Amendments Act “have been

critical for enabling disabled people to establish group homes that are integrated

with the larger community,” even though “[sober living home] owners and

operators continue to face harassment by opponents who are either unaware of or

not concerned about these laws.”66

People in recovery are not the only people with disabilities that will be

negatively affected by allowing discriminatory zoning ordinances, like this one, to

Relationships Among Residents of Sober Living Homes, 21 QUALITATIVE HEALTH RESEARCH 2011 477-488, 478 (2011) (Exh. 7). 63 Id. 64 Id.65 Id. 66 Id. at 486.


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stand. Social scientists and healthcare researchers outside the specific sober living

home context have also consistently found that living in shared housing or housing

with support produces positive results when undertaken with individualized care

planning and the full range of needed services. This living arrangement:

dramatically improves the overall quality of life for persons with disabilities in a number of ways that are more impressionistic, yet still capable of evaluation. Researchers have measured, for example, a significantly more positive affect and appearance for persons with disabilities who have been integrated than for matched groups that were segregated. This is particularly important for children with disabilities. It is well-accepted in our society that children should grow up in families. Children with disabilities suffer significant adverse effects when deprived of that opportunity through isolation in a segregated environment. Educators and disability researchers report integration produces improved appearance and responsiveness for persons with disabilities, even for those who previously had been largely unresponsive without contact with others without disabilities. Persons with disabilities living in the community are more likely to participate in the management of their activities, to make their own decisions and to be more involved in all decisions which affect their lives.67

Housing in an integrated setting helps to foster autonomy and independence,

which in turn help improve medical outcomes and quality of life. As Justice (then

Judge) Cardozo explained long ago, control over one’s body and medical care is an

essential freedom: “Every human being of adult years and sound mind has a right

to determine what shall be done with his own body.”68 But such autonomy is not

67 Cook, supra note 47, at 455.68 Schloendorff v. Society of the New York Hosp., 105 N.E. 92, 93 (N.Y. 1914).


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merely an abstract social good. The National Council on Disability points to

multiple studies providing “evidence . . . that being able to make personal choices

regarding one’s own life promotes health, well-being, and personal satisfaction,”69

and there is further evidence as well.

One study of developmentally disabled adults, for example, revealed that

community homes were unsatisfactory when they replicated features of

institutional life, such as a regimented internal structure.70 Participants expressed

awareness of negative societal attitudes towards them, which led to feelings of

isolation and mistrust of services and a consequent need to promote personal

strengths and control.71 In another study of adults with intellectual disabilities,

researchers noted that their “findings provide a clear endorsement of policies

promoting more individualized living settings . . . .”72 Citing an earlier study, they

pointed out that “individuals with greater choice of living companions and of

where to live had better outcomes in four of six areas examined: loneliness (only

for choice of whom to live with), feeling happy, home staff are nice, and liking

69 NAT’L COUNCIL ON DISABILITY, OLMSTEAD: RECLAIMING INSTITUTIONALIZED LIVES 24 (2003), available at http://www.ncd.gov/publications/2003/Aug192003 (Exh. 8). 70 Ellen MacEachen & Hugh Munby, Developmentally Disabled Adults in Community Living: The Significance of Personal Control, 6 QUALITATIVE HEALTH RESEARCH 71, 72 (1996) (Exh. 9). 71 Id. at 80. 72 R. J. Stancliffe, K. C. Lakin, S. Larson, J. Engler, S. Taub & J. Fortune, Choice of Living Arrangements, 55 J. INTELLECTUAL DISABILITY RESEARCH 746-762, 746 (2011) (Exh. 10).


www.ncd.gov/publications/2003/Aug192003

http://www.ncd.gov/publications/2003/Aug192003

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home (the other two areas showed no significant differences.”73 Similarly,

researchers who have focused on the outcome of community placement for people

with significant cognitive challenges have observed that deinstitutionalization of

people with mental retardation has resulted in increased skills and an improved

quality of life.74 Moreover, there is “little empirical support for the fears regarding

the welfare of extremely challenged individuals who are placed in smaller

community settings.”75 Rather, such individuals are served well in the

community.76

Shared and supported housing has positive outcomes for people with

disabilities. For example, a study of homeless individuals with mental illness,

substance use disorder, and other disabilities, revealed that moving into supportive

housing resulted in significant declines in the percentage of those individuals who

had any emergency department visits, the mean number of emergency department

visits, and the total number of emergency department visits.77 Other studies of the

effects of community placement on individuals with significant support needs

73 Id. at 747 (internal citation omitted). 74 Scott Spreat & James W. Conroy, Community Placement for Persons with Significant Cognitive Challenges: An Outcome Analysis, 26 JASH 106 (2001) (Exh. 11).75 Id. at 111. 76 Id. 77 Tia E. Martinez & Martha R. Burt, Impact of Permanent Supportive Housing on the Use of Acute Care Health Services by Homeless Adults, 57 PSYCHIATRIC SERVS. 992, 995 (2006) (Exh. 12).


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indicate that supported living arrangements provide other increases in quality of

life—including increases in self-help, social skill and domestic skill acquisition,

along with engagement in more purposeful activity, a more varied lifestyle, and

more comfortable surroundings.78 Like the sober living homes and residential

treatment facilities at issue in this case, homes where unrelated people with

developmental, psychiatric, and other disabilities live together as families with

support would be barred by the Newport Beach ordinances.

V. CONCLUSION

For the foregoing reasons, and the reasons set forth in Appellants opening

brief, the order and judgment of the District Court should be reversed and

judgment should be entered in favor of the Appellants.

DATED: October 11, 2011 Chris M. AmanteaAlexandrea H. YoungHUNTON & WILLIAMS LLP

By /s/ Chris M. Amantea Chris M. Amantea

Counsel for Amicus Curiae Disability Rights Legal Center

78 Spreat & Conroy, supra note 76, at 107.


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CORPORATE DISCLOSURE STATEMENT

Pursuant to FED. R. APP. P. 26.1, counsel represents that none of the amici

curiae on whose behalf this brief is filed, have parent, subsidiary, or affiliated

corporations that have issued shares to the public.

DATED: October 11, 2011

Chris M. AmanteaAlexandrea H. YoungHUNTON & WILLIAMS LLP




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CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 32

I certify that, pursuant to FED. R. APP. P. 32(a)(7)(C) and Ninth Circuit Rule

32-1, the attached amicus curiae brief uses a proportionately spaced, 14-point

typeface, and consists of 5628 words. This word count does not include the Table

of Contents, the Table of Authorities, Corporate Disclosure Statement, this

Certificate of Compliance, the Certificate of Service, or the Statement Pursuant to

FED. R. APP. P. 29(c)(5). In preparing this certificate, I relied on the word count

function of Microsoft Word 2003, used to prepare this brief.






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STATEMENT PURSUANT TO FED. R. APP. P. 29(C)(5)

No party’s counsel authored the brief in whole or in part. No party or

party’s counsel contributed money that was intended to fund preparing or

submitting the brief. No person other than the amici curiae, their members, and

their counsel contributed money that was intended to fund preparing or submitting

the brief.





99997.032228 EMF_US 37073453v13


pacific shores properties, llp, et al., v. city of newport beach filed amicus brief

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