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The city of Boca Raton, Fla., is locked in a conflict with the U.S. Department of Justice over the city’s efforts to prevent homes for recovering drug addicts and alcoholics from setting up in residential neighborhoods. An ordinance recently passed by the city to restrict the location of such facilities to commercial districts has triggered an investigation by the Justice Department, as well as legal threats by the owners of two substance abuse facilities and an inquiry from the American Civil Liberties Union. The dispute reflects long-standing resistance by neighborhood groups and city officials in South Florida and around the state to the establishment of group homes or similar facilities for people with physical disabilities or emotional, mental or substance abuse problems. Miami-Dade County also is struggling to rework its land use ordinance to address the fears of residents that their neighborhoods could be overrun with people prone to crime. Delray Beach in August was poised to adopt a measure similar to Boca Raton’s. But the Justice Department recently sent a strongly worded letter to Delray Beach officials saying the measure likely would violate Fair Housing Act prohibitions against discrimination. Riviera Beach, after denying a permit to a group home there, backed down after a Fair Housing lawsuit was filed against it in U.S. District Court for the Southern District of Florida in 1998. The Boca Raton ordinance, passed by a 5-0 vote of the City Council May 29, restricts sober houses to certain districts and requires that they not be established closer than 1,000 feet from one another. Sober houses are group homes for people who’ve been through substance abuse rehabilitation but who need more structure before going back to their ordinary living. Under the ordinance, sober houses, generally units in apartment buildings or in houses, have 18 months from date of passage to move to locations permissible under the ordinance. The Justice Department is looking into whether the ordinance violates Fair Housing Act prohibitions against discrimination. Boca Raton officials say a recently passed state law says such facilities must comply with local zoning codes. Boca Raton’s newly revised code drew a swift letter from the Justice Department informing the city of its investigation of the ordinance. But Boca Raton officials are fighting back. They said they planned last week to submit a detailed response to the Justice Department on the issue. The defense was being drafted by Michael S. Popok and Mancy E. Stroud of Weiss Serota Helfman Pastoriza & Guedes in Fort Lauderdale, Fla. The firm’s lawyers declined comment, on the request of Boca Raton City Attorney Diana Grub Frieser. Part of what’s at issue is whether the new provision of Florida Statute 397, which requires that such residences comply with local zoning codes, is consistent with federal laws as the Fair Housing Act, the Americans with Disabilities Act and the equal protection clause of the 14th Amendment. Like Boca Raton, a number of Florida cities have tried to use the state’s new definition of sober houses as “treatment facilities” as a basis for applying zoning laws to restrict their locations, says F. Lorraine Jahn, a partner at the Solomon Tropp Law Group in Tampa, who represents Sober Living in Delray Beach and the Delray Beach Recovery Association, a group of sober house operators. “The problem they have is that recovering alcoholics and drug addicts are protected” by the ADA, the Fair Housing Act, and the U.S. Constitution, she says. But Boca Raton Mayor Steven Abrams defends his city’s ordinance and believes it will pass legal scrutiny. “[The ordinance] does not prohibit sober houses. It does not even relegate them to industrial zones or warehouse districts. It permits them in motel districts and in medical districts in the city.” Sober houses are one of the few affordable living options for recovering addicts who may not have been working for some time. The houses, which typically have on-site property managers, typically require that residents undergo regular drug testing. Those who fall off the wagon generally are kicked out. Such facilities are found in residential neighborhoods in many municipalities around the state. Though the recent state law change defines them as treatment facilities, their residents do not receive treatment on site, says Jahn, whose Delray Beach clients have put that city on notice that the proposed ordinance could draw a lawsuit from them or from the federal government. There currently are about a half dozen such group homes located in Boca Raton and a half-dozen in Delray Beach, mostly in apartment complexes. They usually have about 10 residents or less and no staff other than the property manager. The owners of Boca House and Awakening, two facilities for substance abusers, have threatened to file suit against the city, under the Fair Housing Act. If the ordinance is not repealed, they say, they’d be required to move or to drop their drug-testing of residents, a key tool in keeping the homes drug-free. In Delray Beach, a Justice Department attorney says the proposed ordinance “would likely violate the Fair Housing Act.” Richard A. Koffman, a trial attorney in Justice’s Housing & Civil Enforcement Section, wrote to Delray Beach officials on Aug. 16 that the Fair Housing Act is intended to end the unnecessary exclusion of handicapped persons from the American mainstream and to invalidate zoning and other requirements that limit their ability to live in their residences of choice. “Recovering alcoholics and drug addicts are persons with disabilities protected by the Act,” he wrote. As a result, Delray Beach officials have put their proposed ordinance on hold. Boca Raton Mayor Abrams says his city sees the need for sober houses. But in some neighborhoods, he says, these facilities were “taking over the entire neighborhood.” Boca Raton officials say there were a high number of calls to police associated with the sober houses, including calls involving suicide attempts, fights and other disturbances. City Councilwoman Carol Hanson says there were 378 police and fire calls to the sober houses in the city during the year prior to the May vote on the ordinance. That averaged out to about two-and-a-half calls a month per home. Gabriel Nieto, a Miami attorney who represents Boca House and Awakening, says it’s clearly contrary to federal law to force anyone, including recovering addicts, to live in a specific area. He compares ordinances like Boca Raton’s to deed covenants in the 1960s that prohibited homeowners from selling to blacks. Municipal zoning ordinances are supposed to cover matters like the size of buildings and residential density, says Nieto, an of counsel attorney at Steel Hector & Davis. “That’s not what they’re doing,” he contends. “They’re trying to push [sober houses] out. They know that there are facilities that are within 1,000 feet of one another, and they’re making it retroactive. When do you see a zoning ordinance that’s retroactive? Never.” Nieto says his clients hope to resolve the dispute without having to sue. But they will sue if Boca Raton doesn’t repeal the ordinance, he says. In the next month or so, the Miami-Dade County Commission is slated to consider a sober house zoning ordinance with a 1,000-foot restriction similar to Boca Raton’s. Nieto says he fears that the 1,000-foot restriction will be used to deny approval to sober houses in many locations throughout unincorporated Miami-Dade, if there happens to be any other kind of group home nearby. In southern Miami-Dade, for example, a rehab facility called New Hope Corps, funded by the Homeless Trust, was having problems obtaining a land use variance from the county. The facility was rejected by an area community council, a neighborhood board that has zoning authority. But a Miami-Dade Circuit Court judge remanded the matter to the community council. Before the council could hear the matter again, however, the county’s entire set of zoning standards was found unconstitutional by the 3rd District Court of Appeal, in a decision arising from a dispute over cell phone towers. The 3rd DCA found the county’s zoning standards lacked specificity. While the county appeals that case to the Florida Supreme Court (which has yet to decide whether it will take it up), the county is working on interim standards that would apply to land use matters, including the New Hope facility. These should come before the County Commission for discussion in a month, says Joni Armstrong Coffey, a Miami-Dade assistant county attorney. Miami-Dade is trying to address community concerns that the facilities be “well dispersed,” Coffey says. “You don’t want to turn [a neighborhood] into an institutional community” and defeat the purpose of having facilities that are supposed to be out in the real world, she says. “It’s a tough line to draw,” Coffey adds. Similar fights have cropped up in recent years in Florida from Riviera Beach to Daytona Beach. Steve Polin, a Washington, D.C., solo practitioner who concentrates on group home litigation, says the Fair Housing Act is the strongest legal weapon for sober houses in warding off municipal restrictions. That’s because it’s specifically aimed at housing. The Americans with Disabilities Act can be used as well, he says, because it deals with discrimination in provision of municipal services and has been applied to zoning and land use decisions. But it’s a broader brush than the Fair Housing Act, he says. Polin says he generally includes a constitutional equal protection count in his complaints. But he says that using the equal protection clause as a legal tool “doesn’t get you that far,” because sober houses are not a constitutionally protected class and it’s hard to show an equal protection violation, he says. Polin currently represents Michael Gardner, owner of Hearthstone Fellowship Foundation Inc., a nonprofit organization that operates a home for recovering drug addicts and alcoholics in Daytona Beach, Fla. In that case, filed in U.S. District Court in Orlando, he demonstrated that Daytona Beach officials had resisted and delayed action on the facility’s request for a permit. The case currently is in mediation. Says Polin: “There is a pretty pervasive attitude in Florida of ‘Not in my backyard.’”

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