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In a huge win for recovering heroin addicts, a federal appeals court has struck down a Pennsylvania statute that restricts the placement of a methadone-treatment facility within 500 feet of a school, public playground or park, residential housing area, child-care facility or church. “A law that singles out methadone clinics for different zoning procedures is facially discriminatory under the ADA [Americans With Disabilities Act] and the Rehabilitation Act,” U.S. Circuit Judge D. Brooks Smith wrote in his 52-page opinion in New Directions Treatment Services v. City of Reading. The ruling is a victory for attorneys Barbara E. Ransom and Michael Churchill of the Public Interest Law Center of Philadelphia. Smith said the case was an example of the “familiar conflict between the legal principle of nondiscrimination and the political principle of not-in-my-backyard.” According to court papers, New Directions signed a 10-year lease on a property that had previously been operating as a counseling center for patients with mental health problems and drug addictions, but did not provide methadone treatment. The property, at 700 Lancaster Ave. in Reading, is located on a commercial highway that is interspersed with about 75 private residences. New Directions proposed a 4,000-square-foot addition to the property to accommodate increased usage because it expected to treat several hundred methadone patients. But the Reading City Council unanimously rejected New Directions’ request for a permit, citing the Pennsylvania law passed in 1999 that prohibits methadone treatment centers from being located close to residential areas, schools, churches or parks unless zoning officials vote to waive the ban. When New Directions inquired about sites that would not be covered by the statute, the suit says, a city zoning official recommended three sites, including a cemetery and a heavy industrial area, all of which New Directions considered unsuitable. New Directions filed suit in federal court, arguing that the statute is unconstitutional because it violates the Equal Protection clause of the 14th Amendment and also violates the Americans With Disabilities Act. But U.S. District Judge Paul S. Diamond dismissed the suit, granting summary judgment for the city after finding that the Pennsylvania statute is a valid one. Diamond found that the statute “is one that ensures public participation before a municipality approves zoning for a methadone treatment center in a residential neighborhood.” Since the law merely requires the municipality to consider the opinions of its residents, Diamond said, it cannot be considered an impermissible “obstacle” to effectuating the ADA or the Rehabilitation Act. Now the 3rd Circuit has ruled that Diamond’s analysis was flawed. “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. However, these inquiries are analytically distinct and must be approached accordingly,” Smith wrote. In an equal protection challenge, Smith said, the plaintiff “bears the burden of negating all conceivable rational justifications for the allegedly discriminatory action or statute.” By contrast, Smith said, 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.” Since recovering heroin addicts are not a “suspect class,” Smith said, an equal-protection challenge to such a statute would succeed only if the plaintiffs could show “a bare desire to harm a politically unpopular group” or that the law is completely irrational. But under the ADA, Smith said, a statute that facially discriminates against disabled individuals such as recovering drug addicts “faces a far different and more skeptical inquiry.” Smith, who was joined by 3rd Circuit Judge Jane R. Roth and visiting U.S. District Judge Joseph E. Irenas, also found that the statute could not be saved by the “direct threat” defense. For such a defense to succeed, Smith said, it would have to be shown that recovering heroin addicts “pose a significant risk.” But the evidence of such a risk, Smith said, was simply lacking. “The record demonstrates no link between methadone clinics and increased crime,” Smith wrote. The commonwealth of Pennsylvania, which participated in the appeal as an amicus, “offered no evidence to support its contrary assertion that there is a ‘frequent association’ between methadone clinics and criminal activity,” Smith wrote. And the Reading City Council members who testified about their concerns of “heavy traffic, loitering, noise pollution, littering, double parking, and jaywalking,” likewise had “no evidence to support an association between these concerns and methadone clinics.” Smith also looked to the legislative history in the General Assembly and found that the evidence cited by the bill’s sponsors was also questionable. Former state Rep. Todd Platts of York County (now a Congressman), who was the bill’s principal sponsor, stated that the law would protect “children from the high crime rates associated with heroin addicts,” and that, “on average heroin addicts before treatment commit a crime on average 200 days of the year.” Platts said that even after six months of methadone treatment “they still average once a month committing a crime.” But Smith said Platts “offered no source for this statistic,” and that “we find it difficult to place much weight on this unsupported statistic given [the] unrebutted testimony that other [New Directions] 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.” Smith also found that a quote from former state Rep. Frank Serafini was an example of the “generalized prejudice and fear” that the U.S. Supreme Court has warned against in prior ADA cases. Serafini said on the house floor: “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 and free of drugs and should not be confronted by this kind of a pollution in their community.” Smith concluded that “the speculative, hypothetical, and unsupported statements” in the legislative history and in the Reading City Council meeting “do not suffice to create a triable issue of fact as to whether [New Directions'] clients, or methadone patients generally, pose a significant risk.” The 3rd Circuit ordered Diamond to enter a partial summary judgment in favor of the plaintiffs and to consider whether the plaintiffs – both New Directions and the six recovering addicts who joined the suit – are entitled to damages. Reading’s lawyer, Steven K. Ludwig of Fox Rothschild, was out of town yesterday and could not be reached for comment. (Copies of the 52-page opinion in New Directions Treatment Services v. City of Reading, PICS No. 07-0950, are available from The Legal Intelligencer . Please refer to page 10 for ordering information.)

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