Sober-Living Regulations throughout the Nation, Part II

While there have been many challenges to local municipalities’ attempts to regulate or otherwise limit sober-living facilities, there are few reported cases where plaintiffs have challenged the statewide licensure or certification regulations. Judicial opinions discuss challenges to local zoning laws or other measures enacted by cities and municipalities; however, as of the date of this writing, no published cases concern statewide licensing and certification requirements. As a result, it is unclear how courts will respond if sober-living operators attempt to challenge the licensure or certification requirements as a violation of federal and state discrimination laws.

Legal Challenges to Local Laws

In the cases involving municipal zoning laws, the plaintiffs often argue that the laws discriminate against a protected class of individuals in violation of the ADA, FHA, and state discrimination laws. Where the zoning, safety, or other local ordinance mentions sober-living facilities specifically, the law will be challenged as facially discriminatory and subject to heightened scrutiny under the FHA. Typically, courts evaluating such a law will require the government entity to show: “(1) that the restriction benefits the protected class; or (2) that it responds to legitimate safety concerns raised by the individuals affected, rather than being based on stereotypes” (Community House, Inc. v. City of Boise Idaho, 2007). Where the government cannot meet this burden, the law will be struck down.

For example, in Human Resource Research and Management Group, Inc. v. City of Suffolk (2010), a sober-living operator challenged a city ordinance that required, among other things:

• Sober-living homes to provide notice to local authorities about where the house was being considered so that a public hearing could be held
• Sober-living homes to have on-site “certified site managers” at all times
• A limitation of five residents at a sober-living facility at a time (exclusive of providers)
• The operator of the sober-living home to apply for a county license and pay a fee for the application (Human Resource Research and Management Group, Inc. v. City of Suffolk, 2010)

The court found that none of the challenged requirements were narrowly tailored to support the asserted government interests (Human Resource Research and Management Group, Inc. v. City of Suffolk, 2010).

With respect to local licensure requirements specifically, the court in Human Resource Research rejected the government’s arguments that licenses were necessary to prevent “slum landlords” in the absence of credible evidence from the city that the protected, “affected class of disabled people are so particularly vulnerable as a class to predatory or unscrupulous landlords . . . in a manner that necessitates the application of the registration, background checks, and inspection requirements” (Human Resource Research and Management Group, Inc. v. City of Suffolk, 2010). Other cases have also rejected municipal licensing requirements for sober-living homes (See Jeffrey O. v. City of Boca Raton, 2007).

Existing cases dealing with local licensure attempts do not foreclose other courts from finding there are sufficient bona fide benefits to sober-living residents from state-wide licensure laws to withstand scrutiny under the FHA and other antidiscrimination laws. Indeed, the publicity over the abuses of sober-living operators will support the government’s potential arguments that licensure is required to protect residents from illegal patient brokering, kickbacks, bed vouchers, and other misconduct.

Legal Challenges to State Laws

Case law dealing with statewide licensure requirements is sparse. However, there should be more judicial decisions on mandatory and voluntary licensure and certification programs being enacted by states, as operators face difficulties complying with new laws and regulations.

In New Jersey, there was a reported (but unpublished) case called Department of Community Affairs v. Hansen House, LLC (2017), where a sober-living operator appealed from an administrative law finding that it was operating an unlicensed boarding house in violation of state regulations that require licensure for “rooming and boarding houses” from the Department of Community Affairs (DCA; Department of Community Affairs v. Hansen House, LLC, 2017). In Hansen House (2017), the operator of a recovery residence called RSS House argued that the rooming and boarding house regulations violated the FHA and that the DCA was required to make a reasonable accommodation for the facility and exempt it from the regulations. The regulations required, among other things, that the physical structure for RSS House comply with certain building and safety codes and that the operators pay licensure fees to the DCA. RSS House had sought neither an exemption nor a waiver from DCA, but had continued to operate without complying with the regulations (Department of Community Affairs v. Hansen House, LLC, 2017). It was found to be in violation of the regulations, which it then challenged before an administrative law court. The plaintiff failed to present evidence about the financial impact if the facility had to secure a license, and that complying with the licensure requirements would undermine RSS House’s operations or cause the facility to close (Department of Community Affairs v. Hansen House, LLC, 2017). As a result, the court found that RSS House was subject to the licensure laws and regulations, and remanded the matter to DCA for further proceedings concerning whether RSS House should receive “an exception waiving, modifying or postponing the application of any regulation” (Department of Community Affairs v. Hansen House, LLC, 2017).

In Utah, a sober-living operator brought a case seeking an injunction against the state laws requiring recovery residences to obtain a state license and be subject to regulatory oversight, but there was no reported or published court decision in the case. This case, Anderson v. Utah (2016), alleged that the existing regulations would require plaintiffs to expend over $120,000 to make home modifications, and an additional $165,000 a year in overhead costs to cover paid on-site supervision, licensed professional staff, and case management. The plaintiff alleged that the regulations violated the FHA and the ADA, and should be enjoined. The court issued a temporary injunction against the enforcement of the regulations and then the parties worked out a voluntary stay of the litigation.

Shortly thereafter, the Utah requirements were revised to be less burdensome for operators. The requirements no longer include such expensive provisions as professionally licensed, live-in staff and as many physical plant requirements. The new licensure requirements are in effect and have not been subject to any published challenges like the Anderson v. Utah (2016) litigation.

Cases like Anderson v. Utah (2016), if they proceed and result in published decisions, will be highly informative about whether state licensing regulations aimed at sober-living houses can withstand judicial scrutiny, especially where they are mandatory for all recovery residences as is the case in Utah. In addition, it is possible that the federal government, including the Department of Justice (DOJ) and Department of Housing and Urban Development (HUD) could get involved if either determines that the mandatory licensure requirements violate federal law. Operators of sober-living facilities and legal counsel involved in SUD treatment are eagerly awaiting further clarification on whether both “voluntary” and mandatory licensure requirements will be upheld if they are challenged as violations of federal laws like the ADA and FHA, and whether government agencies like the DOJ or HUD will intervene.

Until then, operators are urged to follow the laws on the books and seek professional advice and counsel in making decisions about how to proceed in light of current requirements. Operators should also consider seeking out optional certification in the states with programs by NARR affiliates and other private accreditation bodies.

Disclaimer: The information provided in this article is for educational purposes only. It is not intended to provide legal advice. Due to the complexity of the issues involved and the rapidly changing legal landscape, it is advised to consult qualified legal counsel before beginning or continuing operations as a sober-living facility.

References

Anderson v. Utah, No. 1:16-cv-00005-PMW (D. Utah 2016)

Community House, Inc. v. City of Boise Idaho, 490 F.3d 1041, 1050 (9th Cir. 2007)

Department of Community Affairs v. Hansen House, LLC, No. RBHS-018-09/0601-0058 (S.C.N.J. 2017)

Human Resource Research and Management Group, Inc. v. City of Suffolk, 687 F. Supp. 2d 237 (E.D.N.Y. 2010)

Jeffrey O. v. City of Boca Raton, 511 F. Supp. 2d 1339, 1356 (S.D. Fla. 2007)