Can cities really adopt laws saying that sober living homes must have permits?
And that such homes must be separated — by hundreds of feet! — from one another? That’s blatant discrimination against people recovering from addiction, who are considered disabled under the law… right?
Wrong, a panel of judges from the U. S. Court of Appeals for the Ninth Circuit said — again, and with greater unanimity — last week.
This affirmation could have far-reaching implications in California and throughout the nation as more cities (such as Mission Viejo and Fountain Valley) embrace laws regulating sober homes, which have turned some neighborhoods into veritable treatment campuses and put recovering residents at risk.
Ohio House sued Costa Mesa over laws requiring permits, separation and more in 2019, charging discrimination and violation of fair housing laws in federal court. Ohio House did not prevail before a jury. It did not prevail upon appeal. And when it asked the entire Ninth Circuit to reconsider, the answer was no — but the three-judge panel that wrote the December opinion favoring the city revisited the facts and amended that opinion — still in the city’s favor, but eliminating the partial dissent of one judge.
Ohio House failed to prove “a significant, adverse, and disproportionate effect on a protected group,” they said, because the “differential treatment” recovering addicts endured under the city’s sober home regulations actually benefits, rather than harms, a protected class of disabled people.
The lower court judge made some errors with jury instructions, the opinion said, but they were harmless and do not warrant a new trial. Comments made by individual city employees suggesting that there was “a discriminatory purpose” for the zoning? Those are insufficient to overturn the jury’s verdict, it said.
The amended opinion “gives comfort to cities that would like to have some kind of oversight over these homes,” said M.C. Sungaila, Costa Mesa’s lead appellate counsel and a partner at Complex Appellate Litigation Group.
“That’s the challenge really — ‘You can’t do anything.’ That’s what they all were arguing for so long. But yes, yes, you can! You can address problems in your community. You have to do it carefully, as Costa Mesa did. You can’t say, ‘No, you can’t exist…’ but this establishes that cities can have some sort of ordinance.”
Attorneys for Ohio House did not return calls and emails seeking comment on the decision and plans for next steps. It has 90 days to appeal to the U.S. Supreme Court, which officials expect it will do.
Clearing the path
Costa Mesa has spent some $20 million over the past dozen years defending its laws, which prohibit sex offenders, violent felons and drug dealers from operating sober living homes. They require operators to provide 24/7 supervision of residents, as well as transportation for folks who leave so they don’t wind up on the streets. The use of drugs is not allowed, and the homes must have good-neighbor policies.
But the rule that sparked the conflict is Costa Mesa’s 650-foot separation requirement between homes — designed to keep neighborhoods from becoming veritable “treatment campuses” and de facto mini-institutions. Ohio House operated a large sober living complex on Wilson Street – five separate units with four bedrooms each, housing about 45 people. It was just 550 feet from another sober living home that had already gotten a conditional use permit from the city, and there were several other group homes within 650 feet as well (including two state-licensed addiction treatment facilities and an unpermitted facility the city was grappling with).
(File photo)
Ohio House was denied a permit for that complex. Then was denied a request for special accommodation. Then it sued the city, charging that the zoning laws discriminate against the disabled and violate the Americans with Disabilities and Fair Housing acts, among others.
A federal jury disagreed. The federal appeals court disagreed via published opinions, which means they set precedent for others to follow.
And, cautiously, others are following.
‘Reasonable regulations’
Championed by the California Sober Living and Recovery Task Force, Costa Mesa’s legal victories are inspiring more cities to adopt such ordinances. Among the latest are Fountain Valley and Mission Viejo, which join Anaheim, Huntington Beach, Newport Beach, Laguna Niguel and the counties of Orange, Riverside and San Bernardino in a club that is frowned upon by the state of California (which has threatened agencies that adopt sober ordinances with the loss of state funding).
Last year, Fountain Valley cloned Costa Mesa’s now tried-and-tested laws, giving sober homes one year to comply. As of April 1, a dozen permits have been granted; a dozen applications were pending; and four permits were denied while one was withdrawn, according to city data. But the majority have not complied, said Omar Dadabhoy, deputy city manager, so the city started issuing citations March 1.
It has cited 24 homes for operating without a permit. If they fail to comply after three citations, they’re referred to the city attorney’s office for legal action.
One home, on Dandelion Avenue, has progressed that far, while two others say their leases end May 31.
“We have put in place reasonable regulations for these businesses that any good operator is able to comply with,” Dadabhoy said. “No curbing — you can’t just evict people, you need to provide proper transportation. No alcohol or non-prescription drug use. A property manager on site. These are very reasonable things that should be happening anyway. Good operators are complying.”
And just this month, Mission Viejo adopted its version of Costa Mesa’s ordinances, with a larger separation requirement of 1,000 feet (something that will vary with different city layouts). Mission Viejo has been the driving force behind the Sober Living Task Force, aiming to get a model, road-tested ordinance to fellow cities in a municipal version of “we hang together, or we hang alone.”
“The State of California has repeatedly declined to adopt regulations or exercise oversight over some group homes, and especially those group homes commonly referenced as sober living homes,” Mission Viejo’s ordinance says. “This steadfast lack of care and attention by the State of California has resulted in several unsafe, life threatening, neighborhood threatening, and other customer/occupant life safety risks to persist in communities across California.”
So cities are on their own. When they adopt the same ordinance, Mission Viejo City Attorney Bill Curley told the council, they become a force. “If they come after one, they have to go after all,” he said. “This latest and best generation ordinance is reflective of what case law and administrative law have held to be lawful and appropriate. It protects residents in these sober living units, it protects neighbors and the neighborhoods around them.”
Existing homes have six months to apply for a permit. And so a new day dawns.
“The Ohio House decision marks an important step forward, as it provides a stronger foundation for jurisdictions to consider Costa Mesa’s sober living home ordinance as a potential model for their own regulations, with reduced concerns about litigation,” Wendy Bucknum, co-chair of the Task Force and Mission Viejo councilmember, said in a statement.
“This progress supports the California Sober Living and Recovery Task Force’s strength-in-numbers approach, encouraging more jurisdictions to adopt similar ordinances.”
Orange County Supervisor Katrina Foley was mayor of Costa Mesa when the rules kicked in and said the court’s message is clear: Local governments have the right to regulate recovery residences. Unscrupulous operators adversely impact communities, pose risks for those seeking care and reduce access to real housing options for residents in need. “We look to the future for state legislation that will give further tools to local governments to reasonably regulate the industry,” she said in a statement.
Attorney Seymour Everett III of Everett Dorey LLP, who has represented Costa Mesa in these sober home cases for years, agrees. The order “reaffirms the jury’s unanimous decision that city ordinances regulating sober living homes are not discriminatory,” he said. “The Costa Mesa ordinance protects people who suffer from addiction and prevents sober living home operators from exploiting the most vulnerable people in society.”