New Directions Treatment Services v. City Of Reading

This case presents the familiar conflict between the legal principle of non-discrimination and the political principle of not-in-my-backyard. New Directions Treatment Services, a reputable and longstanding provider of methadone treatment, sought to locate a new facility in the City of Reading. A Pennsylvania statute that facially singles out methadone clinics gave the City of Reading the opportunity to vote to deny the permit. The City of Reading availed itself of that opportunity.

New Directions and individual methadone patients brought suit on constitutional and federal statutory grounds, raising both facial and as applied challenges to the statute. The City of Reading successfully moved for summary judgment against all of plaintiffs' claims. New Directions and the individual plaintiffs' appeal is before us.

New Directions Treatment Services ("NDTS") operates several methadone clinics throughout Pennsylvania, including one in West Reading.1 NDTS provides methadone maintenance for adults who have been addicted to heroin for at least a year. NDTS's Executive Director, Glen Cooper, contacted the City of Reading ("the City") to discuss opening an additional treatment center, as their West Reading facility had developed a waiting list for treatment. NDTS met with City officials on January 24, 2001, to discuss potential sites within the City. NDTS met with the City Council two months later to continue the discussion. Although NDTS had not yet obtained an operating permit from the City, NDTS signed a ten-year lease on a property located at 700 Lancaster Avenue. NDTS then submitted a zoning permit application.

The Lancaster Avenue property is located on a commercial highway that is interspersed with 40-75 private residences. The Berks Counseling Center previously occupied the site, providing treatment to patients with mental health problems and drug addictions. It did not provide methadone treatment.2 NDTS intended to serve "a couple hundred or so" methadone patients at the new facility. NDTS proposed a 4,000 square foot addition to the property to accommodate this increased usage. NDTS planned to operate the new facility from 5:30 a.m. to 6:00 p.m. on weekdays, as well as more limited hours on weekends.

In 1999, Pennsylvania adopted 53 PA. CONS.STAT. ANN. § 10621, a zoning statute regulating locations of methadone treatment facilities.3 The statute provides that "a methadone treatment facility shall not be established or operated within 500 feet of an existing school, public playground, public park, residential housing area, child-care facility, church, meetinghouse or other actual place of regularly stated religious worship established prior to the proposed methadone treatment facility," unless, "by majority vote, the governing body for the municipality in which the proposed methadone treatment facility is to be located votes in favor of the issuance of an occupancy permit." Id. at § 10621(a)(1) and (b). The Lancaster Avenue property falls within the ambit of the statute. When NDTS inquired about sites not covered by the statute, a City zoning official referred them to three sites, including a cemetery and a heavy industrial area, all of which NDTS considered unsuitable.

The City notified NDTS that it would hold a hearing on January 14, 2002. Glen Cooper, the Executive Director of NDTS, appeared at the hearing and described NDTS's history and its proposed treatment center. He also answered questions from the City Council. NDTS acknowledged that it had experienced some loitering and littering at its West Reading facility. At a second hearing on February 28, 2002, the Council heard additional public comments. At a March 25, 2002 Council meeting, the City heard more comments and then unanimously voted against NDTS's application.

NDTS filed complaints with the Pennsylvania Human Relations Commission ("PHRC") and the U.S. Department of Housing and Urban Development's Office of Fair Housing and Equal Opportunity ("HUD"). The PHRC dismissed NDTS's complaint in a letter stating that, "the facts of the case [did] not establish that probable cause exist[ed] to credit the allegations of unlawful discrimination." NDTS and several individual plaintiffs proceeding in pseudonym filed suit in the United States District Court for the Eastern District of Pennsylvania on March 25, 2004.

The complaint states four counts. First, NDTS alleged violations of the Fourteenth Amendment guarantees of Due Process and Equal Protection, stating that the Pennsylvania statute was unconstitutional on its face and as applied to the proposed Reading facility. Second, NDTS alleged that the statute, both facially and as applied, violates § 504 of the Rehabilitation Act. 29 U.S.C. § 794. Third, NDTS alleged that the statute, both facially and as applied, violates Title II of the Americans with Disabilities Act ("ADA"). 42 U.S.C. § 12132. Fourth, NDTS alleged that the statute, both facially and as applied, contravenes the federal scheme for regulation of methadone treatment and is therefore preempted. NDTS sought declaratory and injunctive relief for harm resulting from the City's purportedly discriminatory action. Individual plaintiff methadone users also sought damages.

The City moved on September 3, 2004 to dismiss individual City officials on the grounds of common law quasi-judicial immunity and qualified immunity. See FED. R.Civ.P. 12(c). The District Court granted the motion on October 17, 2004. NDTS does not appeal this decision.

The City moved for partial summary judgment with respect to the fourth count of the complaint, in which NDTS argued on Supremacy Clause grounds that the statute was preempted by federal law. The District Court granted the motion and dismissed the fourth count on October 15, 2004. NDTS does not appeal this decision.

NDTS and the individual plaintiffs filed the complaint as a class action and moved to certify the class on September 27, 2004, as "all persons residing in the City of Reading and its surrounding community who have been, are currently, or will be at risk of being on the waiting list to receive methadone treatment; and, all opiate-dependant residents of the City of Reading and its surrounding community who have needed, now need or in the future may need methadone treatment." See FED. R.CIV.P. 23(b)(2). The District Court denied the motion without prejudice, reasoning that the Court lacked adequate information to determine if the individual plaintiffs could adequately represent the class.

The City moved for summary judgment. NDTS filed a cross-motion for partial summary judgment on their claims against the validity of the statute. The District Court granted the City's motion in its entirety and denied NDTS's cross-motion on August 22, 2005. NDTS timely appealed.

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction over an appeal from the District Court's final order under 28 U.S.C. § 1291. We review the grant of summary judgment de novo. Union Pac. R.R. v. Greentree Transp. Trucking Co., 293 F.3d 120 (3d Cir.2002). This Court has conclusively settled that the proprietors of a proposed methadone treatment facility have standing to seek relief both on their own behalf and on behalf of their clients under both the ADA and Rehabilitation Act. See Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 405-08 (3d Cir.2005).

NDTS raises a myriad of issues on appeal. They argue (1) that 53 PA. CONS. STAT. ANN. § 10621 facially violates the Equal Protection Clause of the Fourteenth Amendment, the ADA, and the Rehabilitation Act, (2) that the individual plaintiffs have standing to make out ADA and Rehabilitation Act challenges, (3) that the City violated the Equal Protection Clause of the Fourteenth Amendment, the ADA, and the Rehabilitation Act by denying NDTS a permit, and (4) that the District Court abused its discretion by denying the motion for class certification.

1. Whether 53 PA. CONS.STAT. ANN. § 10621 facially violates the ADA and the Rehabilitation Act

NDTS and the individual plaintiffs argue that 53 PA. CONS.STAT. ANN. § 10621 facially violates the Equal Protection Clause of the Fourteenth Amendment, the ADA, and the Rehabilitation Act. The District Court did not engage in a detailed analysis of the statute's validity under either Title II of the ADA or the Rehabilitation Act. Rather, the Court focused on the Equal Protection inquiry.4 However, these inquiries are analytically distinct and must be approached accordingly.5

The principal difference between the equal protection and the ADA inquiry is that, in an as applied or facial equal protection challenge, the plaintiff bears the burden of negating all conceivable rational justifications for the allegedly discriminatory action or statute, Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 367, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), whereas to make out a claim under the ADA, the plaintiff need only show that intentional discrimination was the but for cause of the allegedly discriminatory action. Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157-58 (3d Cir.1995).6 A facially discriminatory statute based on a non-suspect class (such as 53 PA. CONS. STAT. ANN. § 10621) will survive an equal protection challenge unless it is based on a bare desire to harm a politically unpopular group or "a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). A statute that facially discriminates against disabled individuals, however, faces a far different and more skeptical inquiry under the ADA and Rehabilitation Act.

Section 12132 of Title II of the ADA provides that "[s]ubject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. This statement constitutes a general prohibition against discrimination by public entities, regardless of activity.7 Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730-31 (9th Cir. 1999) (striking down a ban on methadone clinics within 500 feet of a residential area). Section 504 of the Rehabilitation Act similarly provides that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). We have noted that "[a]s the ADA simply expands the Rehabilitation Act's prohibitions against discrimination into the private sector, Congress has directed that the two acts' judicial and agency standards be harmonized" and we will accordingly analyze the two provisions together. Newman, 60 F.3d at 157-58; see also Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 44 (2d Cir.1997).

The Sixth and Ninth Circuits have considered the issue of whether a municipal ordinance prohibiting methadone clinics within 500 feet of a residential area violated the general proscription contained in the ADA and Rehabilitation Act. See MX Group, Inc. v. City of Covington, 293 F.3d 326, 342 (6th Cir.2002); Bay Area, 179 F.3d at 737. Both Courts concluded that the ordinances were "facially discriminatory laws" and therefore "present[ed] per se violations of § 12132." Bay Area, 179 F.3d at 737; see MX Group, 293 F.3d at 342.8

The Ninth Circuit confronted many of the issues presented in this case when the Bay Area Addiction Research and Treatment, Inc. ("BAART") and California Detoxification Programs, Inc. ("CDP") tried to relocate their methadone clinic to the City of Antioch, California. Bay Area, 179 F.3d at 727. BAART had been operating a methadone clinic near the courthouse in Pittsburg, California for 13 years. BAART and CDP received notice from Antioch that the proposed location could be used for a methadone clinic under Antioch's zoning plan. However, the Antioch City Council enacted an urgency ordinance banning methadone clinics within 500 feet of residential areas, thereby barring use of the proposed site. BAART and other plaintiffs alleged that Antioch had violated both Title II of the ADA and § 504 of the Rehabilitation Act. The District Court denied Bay Area's motion for a preliminary injunction enjoining the ordinance. BAART appealed. See id.

After disposing of issues not contested in the instant case, the Ninth Circuit analyzed whether the District Court had abused its discretion by denying the preliminary injunction in part because BAART did not have a likelihood of success on the merits. Id. at 733. The Ninth Circuit held that the District Court had abused its discretion by applying an erroneous legal standard and remanded the case. Id. The Ninth Circuit first held that the District Court erred by applying the "reasonable modification" test to a facially discriminatory law. See id. at 734-35. U.S. Department of Justice regulations require that would-be plaintiffs request reasonable modifications to avoid discrimination unless the modification would fundamentally alter the program, activity, ordinance, or statute. 28 C.F.R. § 35.130(b)(7). However, where the "statute discriminates against qualified individuals on its face rather than in its application," the applicable regulation interpreting Title II, which only requires "reasonable" accommodation, makes little sense. Bay Area, 179 F.3d at 734. The only way to alter a facially discriminatory ordinance is to remove the discriminating language. The Antioch ordinance could only have been "rendered facially neutral by expanding the class of entities that may not operate within 500 feet of a residential neighborhood to include all clinics at which medical services are provided, or by striking the reference to methadone clinics entirely," and, "[e]ither modification would fundamentally alter the zoning ordinance, the former by expanding the covered establishments dramatically, and the latter by rendering the ordinance a nullity." Id. Therefore, the reasonable modifications test could not apply to a facially discriminatory ordinance. See id. at 735 (holding that "facially discriminatory laws present per se violations of § 12132").

The Ninth Circuit noted that this determination does not end the inquiry, however, as both statutes withhold protection from any "individual who poses a significant risk to the health or safety of others that cannot be ameliorated by means of a reasonable modification." Id. The Supreme Court developed the significant risk test in School Board of Nassau County v. Arline, a case involving a teacher who alleged a violation of § 504 of the Rehabilitation Act after she was discharged because she had an active case of tuberculosis. 480 U.S. 273, 276, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). The Supreme Court held that "[a] person who poses a significant risk of communicating an infectious disease to others in the workplace will not be otherwise qualified for his or her job if reasonable accommodation will not eliminate that risk." Id. at 287 n. 16, 107 S.Ct. 1123. The Court essentially incorporated a significant risk test into the Rehabilitation Act's definition of a disabled person qualified to receive § 504's protection. The Court noted that this test effectuates § 504's "goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns ... as avoiding exposing others to significant health and safety risks." Id. at 287, 107 S.Ct. 1123.

Although the Ninth Circuit disclaimed any conclusion about the outcome of this inquiry or the ultimate merits of the claim, it repeatedly emphasized that Arline was designed to "ensure [] that decisions are not made on the basis of `the prejudiced attitudes or the ignorance of others,'" and that "[t]his is particularly important because, as with individuals with contagious diseases, `[f]ew aspects of a handicap give rise to the same level of public fear and misapprehension,' as the challenges facing recovering drug addicts." Bay Area, 179 F.3d at 736 (internal citations omitted) (citing Arline, 480 U.S. at 284, 107 S.Ct. 1123). The Ninth Circuit held that, in order for a methadone clinic to fail the significant risk test, it must present "severe and likely harms to the community that are directly associated with the operation of the methadone clinic." Id. at 736-37. Such alleged harms must be supported by evidence and "may include a reasonable likelihood of a significant increase in crime." Id. The Ninth Circuit noted that courts should be mindful of the ADA and Rehabilitation Act's goals of eliminating discrimination against individuals with disabilities and protecting those individuals "from deprivations based on prejudice, stereotypes, or unfounded fear." Id. at 737 (citing Arline, 480 U.S. at 287, 107 S.Ct. 1123). Therefore, "it is not enough that individuals pose a hypothetical or presumed risk"—the evidence must reflect a risk that is significant and harm that is serious. Id.

Three years later, the Sixth Circuit invoked Bay Area and reached a similar result in MX Group v. City of Covington. 293 F.3d 326, 344-45 (6th Cir.2002). MX Group is a for-profit operator of methadone clinics. Id. at 328-29. In 1997, they began the process of locating a suitable site for a methadone clinic in Covington, Kentucky. MX Group selected a location and Covington's zoning administrator issued them a permit. Public outcry spurred the Covington Board of Adjustment to overrule the issuance of the permit. MX Group located another suitable site, prompting the city solicitor to inform the zoning administrator that methadone clinics were not a permitted use anywhere in the city. Shortly thereafter, Covington adopted an amendment to the zoning code expanding the definition of "addiction treatment facility" in the zoning code to include any place whose primary function is to care for the chemically dependent. This term had applied only to programs that provided overnight or housing accommodations. The ordinance limited the number of all such facilities to one facility for every 20,000 persons in the city. This amendment prevented MX Group from locating a facility in the city. Id. at 330-31. However, the zoning administrator testified at trial that it was his impression from the city solicitor that amendments permitting individual clinics would be considered on a case-by-case basis. Id. at 331. MX Group brought suit pursuant to the ADA and Rehabilitation Act. The District Court held that Covington's denial of the permit and the subsequently enacted amendment violated both federal statutes. Id. at 328.

Covington alleged that the District Court had committed various errors of law, of which only one is relevant here—whether the District Court correctly concluded that MX Group was not required to request a reasonable modification. Id. at 334. The Sixth Circuit cited Bay Area approvingly and rejected the "reasonable accommodation argument because it is inapplicable inasmuch as the ordinance at issue is facially discriminatory." Id. The Sixth Circuit noted that "the district court found that the blanket prohibition of all methadone clinics from the entire city is discriminatory on its face," agreed with that conclusion, and also agreed with the Ninth Circuit "that it would make little sense under these circumstances to require Plaintiff to seek an accommodation, when the only accommodation, a fundamental change to the ordinance, could not be considered reasonable." Id. at 335.

Although Bay Area and MX Group dealt with outright bans, we believe that the reasoning of those cases is equally applicable here. The Pennsylvania statute imposes a ban on the establishment of methadone clinics within 500 feet of many structures, including schools, churches, and residential housing developments. See 53 PA. CONS.STAT. ANN. § 10621(a)(1). The Pennsylvania law differs from those in Bay Area and MX Group in that the "the governing body for the municipality in which the proposed methadone treatment facility is to be located" can waive the ban if, and only if, it approves the issuance of a permit by majority vote. 53 PA. CONS.STAT. ANN. § 10621(b). However, this ability of municipalities to waive the statutory ban in no way alters the fact that 53 PA. CONS. STAT. ANN. § 10621 facially singles out methadone clinics, and thereby methadone patients, for different treatment, thereby rendering the statute facially discriminatory.

We agree with the Sixth and Ninth Circuits that a law that singles out methadone clinics for different zoning procedures is facially discriminatory under the ADA and the Rehabilitation Act. We also agree that it is inappropriate to apply the "reasonable modification" test to facially discriminatory laws. See MX Group, 293 F.3d at 344-45; Bay Area, 179 F.3d at 734-35. The only way to modify a facially discriminatory statute is to remove the discriminatory language. However, amending 53 PA. CONS.STAT. ANN. § 10621 to remove the facial discrimination against methadone clinics would "fundamentally alter" the statute. Bay Area, 179 F.3d at 734.

Having concluded that 53 PA. CONS. STAT. ANN. § 10621 is facially discriminatory and that the reasonable modification test does not apply, we proceed to inquire whether NDTS's clients pose a significant risk. This inquiry is also referred to as the "direct threat" defense in cases arising under Title I of the ADA. Bragdon v. Abbott, 524 U.S. 624, 662, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) (Stevens, J., concurring). The Court's analysis of the Rehabilitation Act in Arline remains the guiding precedent. See Arline, 480 U.S. at 278-79, 107 S.Ct. 1123. The Court concluded that contagious diseases such as tuberculosis fit within the Rehabilitation Act's definition of "handicapped," and then addressed the question of whether the plaintiff was otherwise qualified for her job as an elementary school teacher. Id. at 279, 107 S.Ct. 1123. The Court held that "[a] person who poses a significant risk of communicating an infectious disease to others in the workplace will not be otherwise qualified for his or her job if reasonable accommodation will not eliminate that risk." Id. at 287 n. 16, 107 S.Ct. 1123. The Court adopted the language proposed by amicus curiae the American Medical Association, stating the significant risk inquiry should include consideration of four factors: the nature of the risk, the duration of the risk, the severity of the risk, and the probability that the potential harm will occur. Donahue v. Consol. Rail Corp., 224 F.3d 226, 231 (3d Cir.2000) (citing Arline, 480 U.S. at 288, 107 S.Ct. 1123).

The Arline Court limited its decision to cases where a significant risk is alleged on the basis of an infectious disease. See 480 U.S. at 289, 107 S.Ct. 1123. The ADA and subsequent cases expanded the significant risk test to cases where a disability created a significant risk to the health or safety of others, such as attention deficit hyperactive disorder, see Robertson v. Neuromedical Ctr., 161 F.3d 292, 295-96 (5th Cir. 1998), depression, see EEOC v. Amego, Inc., 110 F.3d 135, 143-45 (1st Cir.1997), diabetes, see Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir.1996), violent employees, see Palmer v. Cir. Ct. of Cook County, 117 F.3d 351, 353 (7th Cir. 1997), or epileptics whose jobs involve operating potentially dangerous machinery. See Donahue, 224 F.3d at 231.

The Supreme Court emphasized in Bragdon v. Abbott that the significant risk test requires a rigorous objective inquiry. 524 U.S. 624, 626, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). In Bragdon, a dentist refused to fill a cavity for an asymptomatic AIDS patient. See id. The Court held that:

The existence, or nonexistence, of a significant risk must be determined from the standpoint of the person who refuses the treatment or accommodation, and the risk of assessment must be based on medical or other objective evidence.... As a health care professional, petitioner had the duty to assess the risk of infection based on the objective, scientific information available to him and others in his profession. His belief that a significant risk existed, even if maintained in good faith, would not relieve him of liability.

Id. at 649, 118 S.Ct. 2196. Accordingly, we cannot base our decision on the subjective judgments of the people purportedly at risk, the Reading residents, City Council, or even Pennsylvania citizens, but must look to objective evidence in the record of any dangers posed by methadone clinics and patients. The purported risk must be substantial, not speculative or remote. See id. at 649, 118 S.Ct. 2196 ("Because few, if any, activities in life are risk free, Arline and the ADA do not ask whether a risk exists, but whether it is significant."). The Plaintiffs are not required to show that they pose no risk at all.9 See id.

The record contains ample evidence that NDTS's clients, and methadone patients as a class, do not pose a significant risk. Neither the City nor its amicus, the Commonwealth, have offered any evidence to the contrary. The City refers to the deposition of Glen Cooper, the Executive Director of NDTS, in which he estimated that 20 to 30 percent of the clinic's patients would test positive for illegal drugs. However, NDTS also submitted the results of drug screens at its West Reading and Bethlehem clinics showing that only patients enrolled for less than six months test positive at the 30 percent rate, whereas less than six percent of patients enrolled for more than six months test positive for illegal drugs.

More importantly, the record demonstrates no link between methadone clinics and increased crime. Cooper testified that there had been no criminal incidents at NDTS's West Reading facility. The Commonwealth offered no evidence to support its contrary assertion that there is a "frequent association" between methadone clinics and criminal activity. In depositions, City Council members expressed concerns about heavy traffic, loitering, noise pollution, littering, double parking, and jaywalking. However, the City offered no evidence to support an association between these concerns and methadone clinics. Even if such connections existed, we are skeptical that they would qualify as the substantial harms contemplated by the Arline and Bragdon Courts.

The brief legislative history of 53 PA. CONS.STAT. ANN. § 10621 provides no further evidence that methadone patients pose a significant risk. Representative Platts, the bill's principal sponsor, stated that the legislation would protect "children from the high crime rates associated with heroin addicts," that, "[o]n average heroin addicts before treatment commit a crime on average 200 days of the year," and that "[e]ven after 6 months of methadone treatment, they still average once a month committing a crime." Representative Platts offered no source for this statistic. We find it difficult to place much weight on this unsupported statistic given Cooper's unrebutted testimony that other NDTS facilities had experienced no criminal incidents and the extremely positive reports of the National Institute on Drug Abuse and the Office of National Drug Control Policy. In addition, the statement of Representative Serafini betrays the generalized prejudice and fear warned against by the Arline Court:

It is unfortunate that we have to have methadone treatment facilities at all, but to locate them in areas that are residential or close to where young people might congregate or the community might meet and gather is a definite mistake, and these facilities, in my opinion, do not benefit anyone but the heroin addict, and they should be located either in a community that welcomes this kind of facility or out in an area away from people who have kept themselves clean