Earlier this year, the city commission of Stuart, Florida, said “no” to a zoning variance requested by Behavioral Health Centers LLC, which sought to repurpose an existing building into a mental health and substance use disorder (SUD) center.
The commission, and residents of the Florida Treasure Coast town, feared that the clinic’s patients would cause mayhem.
“They’re going to be in my backyard,” one resident testified at the city commission hearing, according to court documents. “They’re looking in our back door, in our backyards, through our windows, and it’s scary.”
In response, Behavioral Health Centers did what dozens of SUD clinic operators have done for decades: They sued. Their lawsuit, filed in September in a Florida federal court, claims that the city of Stuart violated federal law because they are discriminating against the housing of persons in addiction recovery, who are a protected class under the Americans with Disabilities Act (ADA).
For the provider, these types of lawsuits tend to succeed. Behavioral Health Business reviewed several of the 94 cases provided by researchers at Polsinelli law firm, which ran a Westlaw search of SUD providers suing cities under ADA over zoning or land use restrictions. For the cases reviewed that went to a federal court of appeals, judges ruled for the provider each time.
But winning in court and running a successful business are distinct. Deciding to sue is, in effect, a nuclear option against Not in My Backyard attitudes, or NIMBYism, from local governments. It can result in years-long battles that put a provider’s development plans on ice.
“It is a fork in the road,” Tani Weiner, co-chair of the behavioral health law group at legal firm Polsinelli, told BHB. “Do you want to fight, or do you want to pick up your marbles and try to go elsewhere?”
Weiner is speaking from experience, having litigated such cases on behalf of providers.
The BayMark landmark
George H.W. Bush signed ADA into law in 1990, which states that a person in chemical dependency recovery who is no longer using illegal drugs meets the definition of a disability. A few years later, providers began to recognize that cities who block SUD clinics were legally vulnerable.
Weiner, who is based out of San Francisco, cited a 1998 lawsuit by Bay Area Research and Treatment (BAART), what is today BayMark, as seminal to establishing the rights of SUD providers.
BAART had leased land in Antioch, California, to run a methadone clinic. The provider sued after the city of Antioch enacted an “urgency ordinance” prohibiting the operation of methadone clinics within 500 feet of a residential area.
The case wound its way to the U.S. 9th Circuit Court of Appeals, where judges determined that a city’s zoning and land use laws are a “service” that they provide to constituents. Not allowing a methadone clinic was effectively refusing public service to those in SUD recovery.
After the BAART case, Weiner said, the dam broke. Several cases were filed in the early 2000s, including those against cities in Kentucky and Pennsylvania that had cited zoning statutes in nixing methadone clinics. In those cases, the 3rd and 6th Circuit Court of Appeals found the city governments in violation of the ADA.
Lawsuits with similar allegations have continued to be filed, including the Behavioral Health Centers case.
Behavioral Health Centers is a company headquartered in Port St. Lucie, Florida, that operates four residential treatment facilities and one outpatient location in the Sunshine State.
According to their complaint, Behavioral Health Centers asked Stuart, a city of 17,000 people in Martin County, to amend its planning ordinance, which excludes assisted living facilities that operate as treatment centers for people with chemical dependency or mental illness.
Initially, the city approved Behavioral Health Center’s request, only to then be met by “community and political hostility,” the complaint reads. The lawsuit quotes Martin County Sheriff William Snyder testifying before the city that once “these people fail out of the program,” they will be “on the streets” and “in my jail.”
Often in ADA cases, such reactions create extremely public political pressures, Weiner said.
“The planning or zoning department may say, ‘Yeah, that sounds okay to us,’ but once word gets out, political pressure may be brought to bear,” he said. “And people may say, ‘What the hell? I don’t want a drug rehab facility in my neighborhood.’”
The city of Stuart has yet to file a response in the lawsuit, and sources that BHB reached out to would not comment on pending litigation.
Worth fighting for
But while a favorable judgment may vindicate a provider’s mission and even green light their growth plans, it comes at a cost.
In 2019, Haymarket Center, a nonprofit SUD and mental health treatment provider based in Chicago, contracted to buy a Holiday Inn in the northwest Chicago suburb of Itasca that they would turn into a treatment facility.
So began a two-year zoning process that, 35 public hearings later, resulted in the village of Itasca’s board of directors blocking Haymarket’s facility.
Haymarket then sued the village under ADA. The provider’s federal court case was bolstered when the U.S. Attorney’s Office of Chicago intervened in the lawsuit with its own complaint that Itasca engaged in unlawful disability discrimination.
But three years later, the federal court case remains in the fact-finding and deposition stage. Court records showed that, in October, Haymarket and Itasca filed a joint status report stating: “The parties have produced several hundred thousand pages of documents between them and have taken several depositions.”
The status report added that Haymarket and Itasca lawyers would like to meet in January, at which time they will ask the judge, Steven Seeger, for a 90-day extension to allow for more document production and depositions.
Haymarket, whose lawyers in the case are from disability rights nonprofit Access Living, declined to answer specific questions about how they are financing the lawsuit and how much more time they are willing to give the dispute.
“While we cannot comment on pending litigation, we are hopeful we will find a resolution with Itasca leaders,” Haymarket Center CEO Dan Lustig wrote to BHB. “We remain steadfast to addressing discrimination and inequality against those with substance use disorders and are committed to protecting vulnerable populations by ensuring access to life-saving treatments.”
The village of Itasca responded with its own statement, which alluded to Haymarket’s property tax-exempt status as a nonprofit.
“The Itasca Village Board’s decision to deny the zoning request was based on the facts presented at the hearing – facts that showed with Haymarket in the Village, the reduction of revenue and the drain on Village resources were too much to bear,” Lissa Druss, spokesperson for the Village of Itasca, told BHB in an email.
As for how long Itasca plans to fight the treatment provider, Druss said, “The evidence supporting the strength of the village’s case is overwhelming, and we look forward to making our case in court.”
In addition to costs and uncertainty, litigation can also lead to bad publicity.
A West Palm Beach, Florida, local news station has scrutinized Behavioral Health Center’s attempted entrance into Stuart. The station found that company CEO Jason Ackner was sued three times for allegedly not paying rent on treatment facilities and abandoning properties, and that, in one case, Ackner was ordered to pay $250,000 in damages.
Messages left with Ackner and Behavioral Health Centers went unreturned. The lawyer who filed Behavioral Health Center’s lawsuit, James K. Green of West Palm Beach, declined to comment.
According to Weiner, providers that sue are ones that are already committed to a new facility, whether through the purchase or leasing of property, or because they are shifting operations from an adjacent location.
“When a provider is looking to add treatment capacity, they usually have a schedule that they are trying to keep, and they don’t want to go back to square one,” Weiner said.
Another reason is a provider that has been thwarted before in expansion. Throughout its battle with Itasca, Haymarket has noted that it planned a facility in the Chicago suburb of Wheaton but faced fierce community resistance, leading to the Itasca project.
But if there are other options, SUD clinics may not have the appetite to be in the legal and public crosshairs.
“The provider can abandon ship and say, ‘You know what, they don’t want us here and we’re not looking for a fight,’” Weiner said.
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