                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-15-2007

New Directions v. Reading
Precedential or Non-Precedential: Precedential

Docket No. 05-4353




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PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                  Case No: 05-4353

NEW DIRECTIONS TREATMENT SERVICES, on its own
                         behalf and on
 behalf of its patients; ANGEL DOE; DAN COE; JOSEPH
                             JOE;
 LOUIS LOE; CARLOS POE; PETER VOE, on their own
                            behalf
                   and on behalf of the class,

                             Appellants

                              v.

CITY OF READING; VAUGHN SPENCER, City Council
                         President, in
 his official capacity, and City Council Members; ANGEL
FIGUEROA; GEORGE KERNS; MICHAEL D. SCHORN;
                     DENNIS STERNER;
     DONNA REED; JEFFREY WALTMAN; CASEY
                     GANSTER, In their
               individual and official capacities
       On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                District Court No.: 04-cv-1311
       District Judge: The Honorable Paul S. Diamond


                Argued on December 11, 2006

         Before: SMITH and ROTH, Circuit Judges,
                and IRENAS, District Judge*

                     (Filed: June 15, 2007)

              Michael Churchill
              Barbara E. Ransom (argued)
              Public Interest Law Center of Philadelphia
              125 South 9th Street
              Suite 700
              Philadelphia, PA 19107
                     Counsel for Appellants

              Steven K. Ludwig (argued)
              Fox Rothschild
              2000 Market Street
              10th Floor
              Philadelphia, PA 19103
                     Counsel for Appellees



   *
     The Honorable Joseph E. Irenas, Senior District Judge for
the United States District of New Jersey, sitting by designation.
                               2
                           OPINION


SMITH, Circuit Judge.

       This case presents the familiar conflict between the legal
principle of non-discrimination and the political principle of not-
in-my-backyard. New Directions Treatment Services, a
reputable and longstanding provider of methadone treatment,
sought to locate a new facility in the City of Reading. A
Pennsylvania statute that facially singles out methadone clinics
gave the City of Reading the opportunity to vote to deny the
permit. The City of Reading availed itself of that opportunity.

       New Directions and individual methadone patients
brought suit on constitutional and federal statutory grounds,
raising both facial and as applied challenges to the statute. The
City of Reading successfully moved for summary judgment
against all of plaintiffs’ claims. New Directions and the
individual plaintiffs’ appeal is before us.

        I. Summary of facts and procedural history

       New Directions Treatment Services (“NDTS”) operates
several methadone clinics throughout Pennsylvania, including




                                3
one in West Reading.1           NDTS provides methadone

   1
    The National Institute on Drug Abuse (part of the National
Institutes of Health) describes methadone treatment:

       Methadone treatment has been used for more than
       30 years to effectively and safely treat opioid
       addiction. Properly prescribed methadone is not
       intoxicating or sedating, and its effects do not
       interfere with ordinary activities such as driving
       a car. The medication is taken orally and it
       suppresses narcotic withdrawal for 24 to 36 hours.
       Patients are able to perceive pain and have
       emotional reactions. Most important, methadone
       relieves the craving associated with heroin
       addiction; craving is a major reason for relapse.
       Among methadone patients, it has been found that
       normal street doses of heroin are ineffective at
       producing euphoria, thus making the use of heroin
       more easily extinguishable.

       Methadone’s effects last four to six times as long
       as those of heroin, so people in treatment need to
       take it only once a day. Also, methadone is
       medically safe even when used continuously for
       10 years or more. Combined with behavioral
       therapies or counseling and other supportive
       services, methadone enables patients to stop using
       heroin (and other opiates) and return to more
       stable and productive lives.


                               4
http://www.nida.nih.gov/researchreports/heroin/heroin5.html#
treatment.
        The Office of National Drug Control Policy (of the
Executive Office of the President) provides further information
on methadone treatment:

      Background Information

      Methadone is a rigorously well-tested medication
      that is safe and efficacious for the treatment of
      narcotic withdrawal and dependence. For more
      than 30 years this synthetic narcotic has been used
      to treat opioid addiction.
                             ***
      Methadone reduces the cravings associated with
      heroin use and blocks the high from heroin, but it
      does not provide the euphoric rush. Consequently,
      methadone patients do not experience the extreme
      highs and lows that result from the waxing and
      waning of heroin in blood levels. Ultimately, the
      patient remains physically dependent on the
      opioid, but is freed from the uncontrolled,
      compulsive, and disruptive behavior seen in
      heroin addicts.

      Withdrawal from methadone is much slower than
      that from heroin. As a result, it is possible to
      maintain an addict on methadone without harsh
      side effects. Many MMT [methadone
      maintenance treatment] patients require
                              5
continuous treatment, sometimes over a period of
years.

Methadone maintenance treatment provides the
heroin addict with individualized health care and
medically prescribed methadone to relieve
withdrawal symptoms, reduces the opiate craving,
and brings about a biochemical balance in the
body. Important elements in heroin treatment
include comprehensive social and rehabilitation
services.

Availability of Treatment

About 20% of the estimated 810,000 heroin
addicts in the United States receive MMT
(American Methadone Treatment Association,
1999). At present, the operating practices of
clinics and hospitals are bound by Federal
regulations that restrict the use and availability of
methadone. These regulations are explicitly stated
in detailed protocols established by the U.S. Food
and Drug Administration (FDA). Additionally,
most States have laws that control and closely
monitor the distribution of this medication.

In July 1999 the U.S. Department of Health and
Human Services released a Notice of Proposed
Rulemaking (NPRM) for the use of methadone.
For the first time in more than 30 years, the
                         6
NPRM proposes that this medication take its
rightful place as a clinical tool in the treatment of
the heroin addict. Instead of its use being
mandated by regulations, programs will establish
quality assurance guidelines and have to be
accredited. The proposed new system will allow
greater flexibility by the treating physician and
ensure appropriate clinical management of the
patient’s needs. This proposed change in policy
would eliminate most of the current regulations
and allow greater clinical discretion for treatment
by the physician. Accreditation establishes a
clinical standard of care for the treatment of
medical conditions. In the foreseeable future,
clinic and hospital programs would be accredited
by a national and/or State accrediting body.
Responsibility for preventing the diversion of
methadone to illicit use will remain with the Drug
Enforcement Administration.
                        ***
Benefits

Evidence shows that continuous MMT is
associated with several other benefits.

MMT costs about $13 per day and is considered
a cost-effective alternative to incarceration
(Office of National Drug Control Policy, 1998a).

MMT has a benefit-cost ratio of 4:1, meaning $4
                         7
in economic benefit accrues for every $1 spent on
MMT (COMPA, 1997).

MMT has a significant effect on the spread of
HIV/AIDS infection, hepatitis B and C,
tuberculosis, and sexually transmitted diseases
(COMPA, 1997). Heroin users are known to share
needles and participate in at-risk sexual activity
and prostitution, which are significant factors in
the spread of many diseases. Research suggests
that MMT significantly decreases the rate of HIV
infection for those patients participating in MMT
programs (Firshein, 1998).

MMT allows patients to be free of heroin
addiction. The National Institute on Drug Abuse
found that, among outpatients receiving MMT,
weekly heroin use decreased by 69%. This
decrease in use allows for the individual's health
and productivity to improve (Office of National
Drug Control Policy, 1998a). Patients were no
longer required to live a life of crime to support
their habit, and criminal activity decreased by
52% among these patients. Full-time employment
increased by 24%. In a 1994 study of drug
treatment in California, researchers found that
rates of illegal drug use, criminal activity, and
hospitalization were lower for MMT patients than
for addicts in any other type of drug treatment
program.
                        8
The Drug Abuse Treatment Outcome Study
(DATOS) conducted an outpatient methadone
treatment (OMT) evaluation examining the
long-term effects of MMT (Hubbard et al., 1997).
The pretreatment problems consisted of weekly
heroin use, no full-time employment, and illegal
activity. Results of the 1-year follow-up showed
a decrease in the number of weekly heroin users
and a reduction in illegal activity after OMT.
There was no significant change in unemployment
rates.

A Review

MMT is one of the most monitored and regulated
medical treatments in the United States. Despite
the longstanding efficacy of MMT, only 20% of
heroin addicts in the United States are currently in
treatment. The National Institutes of Health
Consensus Development Conference on Effective
Medical Treatment of Heroin Addiction
concluded that heroin addiction is a medical
disorder that can be effectively treated in MMT
programs. The Consensus panel recommended
expanding access to MMT by increasing funding
and minimizing Federal and State regulations.
Further research must be conducted on factors
leading to heroin use and the differences among
various users and their ability to end opiate
                         9
maintenance for adults who have been addicted to heroin for at
least a year. NDTS’s Executive Director, Glen Cooper,
contacted the City of Reading (“the City”) to discuss opening an
additional treatment center, as their West Reading facility had
developed a waiting list for treatment. NDTS met with City
officials on January 24, 2001, to discuss potential sites within
the City. NDTS met with the City Council two months later to
continue the discussion. Although NDTS had not yet obtained
an operating permit from the City, NDTS signed a ten-year lease
on a property located at 700 Lancaster Avenue. NDTS then
submitted a zoning permit application.

       The Lancaster Avenue property is located on a
commercial highway that is interspersed with 40-75 private
residences. The Berks Counseling Center previously occupied
the site, providing treatment to patients with mental health
problems and drug addictions. It did not provide methadone
treatment.2      NDTS intended to serve “a couple


        addiction before the demand for heroin addiction
        treatment can be effectively met by increased
        MMT availability.

http://www.whitehousedrugpolicy.gov/publications/factsht/m
ethadone/index.html.
    2
     The website for the Berks Counseling Center, which has
since relocated, describes its activities:


                              10
Our mission is to provide counseling and
supportive services to enable individuals and
families to achieve a healthy and more productive
lifestyle

Description:
Our purpose is to offer addiction and mental
health out patient treatment, case management,
supportive services, and housing. Services extend
to individuals, couples, families, adolescents and
children. Our target population includes Berks
County residents impacted upon by chemical
dependency and/or mental illness. Berks
Counseling Center (BCC) places a special
emphasis on serving those persons who cannot
access treatment elsewhere due to financial
difficulties. We believe that community
enlightenment and family strength are key
components to the prevention and reduction of
drug abuse. We have a satellite site at the
Reading/Berks Emergency Shelter in order to
better serve the population residing at the Shelter.

History:
Berks Counseling Center (BCC) is a private,
non-profit corporation founded in October 1977
as Berks Youth Counseling Center. BCC is
licensed by the State Dept. of Health, Division of
Program Licensing; and the Dept. of Public
Welfare, Office of Mental Health. BCC has been
                        11
hundred or so” methadone patients at the new facility. NDTS


      providing treatment services to the residents of
      center city Reading for the past 25 years.
      Additionally, BCC has provided both transitional
      (women and their children) and permanent
      housing for persons with disabilities for the past
      twelve years.

http://www.volunteersolutions.org/uwberks/org/220334.html.
Glen Cooper, the Executive Director of NDTS, referred to the
previous tenancy of the Berks Counseling Center at the same
location in his comments before the City Council:

      The Berks Counseling Center was in the very
      building that we are proposing to put this facility
      in. They did exactly the same sort of work that
      we do: drug addiction treatment, mental health
      services.
                             ***
      We found what I think is a very good site where
      formerly heroin addicts were treated. I mean, the
      place that we’re proposing is a former–very
      recently a former site for treating heroin addicts
      and mentally ill people. We’re simply replacing
      or proposing to replace the agency which left
      there not too long ago, replace them with our own
      facility. And, you know, there were no problems
      when Berks Counseling Center was there that I’m
      aware of. They treated the same kind of people
      we treat. They were there for a long time.
                              12
proposed a 4,000 square foot addition to the property to
accommodate this increased usage. NDTS planned to operate
the new facility from 5:30 a.m. to 6:00 p.m. on weekdays, as
well as more limited hours on weekends.

      In 1999, Pennsylvania adopted 53 PA. CONS. STAT. ANN.
§ 10621, a zoning statute regulating locations of methadone
treatment facilities.3    The statute provides that “a


  3
   The statute provides, in full, that:

      (a)(1) Notwithstanding any other provision of law
      to the contrary and except as provided in
      subsection (b), a methadone treatment facility
      shall not be established or operated within 500
      feet of an existing school, public playground,
      public park, residential housing area, child-care
      facility, church, meetinghouse or other actual
      place of regularly stated religious worship
      established prior to the proposed methadone
      treatment facility.

      (2) The provisions of this subsection shall apply
      whether or not an occupancy permit or certificate
      of use has been issued to the owner or operator of
      a methadone treatment facility for a location that
      is within 500 feet of an existing school, public
      playground, public park, residential housing area,
      child-care facility, church, meetinghouse or other
      actual place of regularly stated religious worship
                               13
established prior to the proposed methadone
treatment facility.

(b) Notwithstanding subsection (a), a methadone
treatment facility may be established and operated
closer than 500 feet to an existing school, public
playground, public park, residential housing area,
child-care facility, church, meetinghouse or other
actual place of regularly stated religious worship
established prior to the proposed methadone
treatment facility if, by majority vote, the
governing body for the municipality in which the
proposed methadone treatment facility is to be
located votes in favor of the issuance of an
occupancy permit or certificate of use for said
facility at such a location. At least 14 days prior to
the governing body of a municipality voting on
whether to approve the issuance of an occupancy
permit or certificate of use for a methadone
treatment facility at a location that is closer than
500 feet to a school, public playground, public
park, residential housing area, child-care facility,
church, meetinghouse or other actual place of
regularly stated religious worship established
prior to the proposed methadone treatment
facility, one or more public hearings regarding the
proposed methadone treatment facility location
shall be held within the municipality following
public notice. All owners of real property located
within 500 feet of the proposed location shall be
                         14
methadone treatment facility shall not be established or operated
within 500 feet of an existing school, public playground, public
park, residential housing area, child-care facility, church,
meetinghouse or other actual place of regularly stated religious
worship established prior to the proposed methadone treatment
facility,” unless, “by majority vote, the governing body for the
municipality in which the proposed methadone treatment facility
is to be located votes in favor of the issuance of an occupancy
permit.” Id. at § 10621(a)(1) and (b). The Lancaster Avenue
property falls within the ambit of the statute. When NDTS
inquired about sites not covered by the statute, a City zoning
official referred them to three sites, including a cemetery and a
heavy industrial area, all of which NDTS considered unsuitable.


       provided written notice of said public hearings at
       least 30 days prior to said public hearings
       occurring.

       (c) This section shall not apply to a methadone
       treatment facility that is licensed by the
       Department of Health prior to May 15, 1999.

       (d) As used in this section, the term “methadone
       treatment facility” shall mean a facility licensed
       by the Department of Health to use the drug
       methadone in the treatment, maintenance or
       detoxification of persons.


53 PA. CONS. STAT. ANN. § 10621.
                               15
        The City notified NDTS that it would hold a hearing on
January 14, 2002. Glen Cooper, the Executive Director of
NDTS, appeared at the hearing and described NDTS’s history
and its proposed treatment center. He also answered questions
from the City Council. NDTS acknowledged that it had
experienced some loitering and littering at its West Reading
facility. At a second hearing on February 28, 2002, the Council
heard additional public comments. At a March 25, 2002
Council meeting, the City heard more comments and then
unanimously voted against NDTS’s application.

        NDTS filed complaints with the Pennsylvania Human
Relations Commission (“PHRC”) and the U.S. Department of
Housing and Urban Development’s Office of Fair Housing and
Equal Opportunity (“HUD”). The PHRC dismissed NDTS’s
complaint in a letter stating that, “the facts of the case [did] not
establish that probable cause exist[ed] to credit the allegations
of unlawful discrimination.” NDTS and several individual
plaintiffs proceeding in pseudonym filed suit in the United
States District Court for the Eastern District of Pennsylvania on
March 25, 2004.

        The complaint states four counts. First, NDTS alleged
violations of the Fourteenth Amendment guarantees of Due
Process and Equal Protection, stating that the Pennsylvania
statute was unconstitutional on its face and as applied to the
proposed Reading facility. Second, NDTS alleged that the
statute, both facially and as applied, violates § 504 of the
Rehabilitation Act. 29 U.S.C. § 794. Third, NDTS alleged that
                                16
the statute, both facially and as applied, violates Title II of the
Americans with Disabilities Act (“ADA”). 42 U.S.C. § 12132.
Fourth, NDTS alleged that the statute, both facially and as
applied, contravenes the federal scheme for regulation of
methadone treatment and is therefore preempted. NDTS sought
declaratory and injunctive relief for harm resulting from the
City’s purportedly discriminatory action. Individual plaintiff
methadone users also sought damages.

        The City moved on September 3, 2004 to dismiss
individual City officials on the grounds of common law
quasi-judicial immunity and qualified immunity. See FED. R.
CIV. P. 12(c). The District Court granted the motion on October
17, 2004. NDTS does not appeal this decision.

       The City moved for partial summary judgment with
respect to the fourth count of the complaint, in which NDTS
argued on Supremacy Clause grounds that the statute was
preempted by federal law. The District Court granted the
motion and dismissed the fourth count on October 15, 2004.
NDTS does not appeal this decision.

       NDTS and the individual plaintiffs filed the complaint as
a class action and moved to certify the class on September 27,
2004, as “all persons residing in the City of Reading and its
surrounding community who have been, are currently, or will be
at risk of being on the waiting list to receive methadone
treatment; and, all opiate-dependant residents of the City of
Reading and its surrounding community who have needed, now
                                17
need or in the future may need methadone treatment.” See FED.
R. CIV. P. 23(b)(2). The District Court denied the motion
without prejudice, reasoning that the Court lacked adequate
information to determine if the individual plaintiffs could
adequately represent the class.

       The City moved for summary judgment. NDTS filed a
cross-motion for partial summary judgment on their claims
against the validity of the statute. The District Court granted the
City’s motion in its entirety and denied NDTS’s cross-motion on
August 22, 2005. NDTS timely appealed.

                         II. Discussion

        The District Court had jurisdiction under 28 U.S.C. §
1331. We have jurisdiction over an appeal from the District
Court’s final order under 28 U.S.C. § 1291. We review the
grant of summary judgment de novo. Union Pac. R.R. v.
Greentree Transp. Trucking Co., 293 F.3d 120 (3d Cir. 2002).
This Court has conclusively settled that the proprietors of a
proposed methadone treatment facility have standing to seek
relief both on their own behalf and on behalf of their clients
under both the ADA and Rehabilitation Act. See Addiction
Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 405-08 (3d
Cir. 2005).

       NDTS raises a myriad of issues on appeal. They argue
(1) that 53 PA. CONS. STAT. ANN. § 10621 facially violates the
Equal Protection Clause of the Fourteenth Amendment, the
                                18
ADA, and the Rehabilitation Act, (2) that the individual
plaintiffs have standing to make out ADA and Rehabilitation
Act challenges, (3) that the City violated the Equal Protection
Clause of the Fourteenth Amendment, the ADA, and the
Rehabilitation Act by denying NDTS a permit, and (4) that the
District Court abused its discretion by denying the motion for
class certification.

   1. Whether 53 PA. CONS. STAT. ANN. § 10621 facially
       violates the ADA and the Rehabilitation Act

       NDTS and the individual plaintiffs argue that 53 PA.
CONS. STAT. ANN. § 10621 facially violates the Equal Protection
Clause of the Fourteenth Amendment, the ADA, and the
Rehabilitation Act. 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.4 However, these inquiries are


   4
     The District Court first analyzed the as applied and facial
challenges to the statute under the Equal Protection Clause. The
District Court held that these claims must fail because the City
had asserted rational reasons for the permit denial and in support
of the statute, including “substantial loitering and noise
problems . . . [and] increased vehicular and pedestrian traffic,
double parking, and repeated instances of patient jaywalking.”
       The District Court then held that the Plaintiffs’ claims
under the ADA and Rehabilitation Act could not survive
summary judgment because “Plaintiffs must show that their
                                19
identity as heroin addicts or methadone users was the sole
reason for the City’s decision.” The City concedes that this
misstates our interpretation of the ADA, which requires that, “in
pretext cases a plaintiff need prove only that the illicit factor
‘played a role in the employer’s decisionmaking process and
that it had a determinative effect on the outcome of that
process.’” Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 158
(3d Cir. 1995) (citing Miller v. CIGNA Corp., 47 F.3d 586, 598
(3d Cir.1995)); see also Baird v. Rose, 192 F.3d 462, 468-70
(4th Cir. 1999) (specifically rejecting the sole cause test for
ADA claims).
       The District Court appears to have overlooked that,
despite the fact that Congress has directed the courts to construe
the ADA and the Rehabilitation Act such that conflicting
standards do not arise, see Bragdon v. Abbott, 524 U.S. 624
(1998), the ADA and the Rehabilitation Act are not exactly the
same. The language of these two statutory provisions
“regarding the causative link between discrimination and
adverse action is significantly dissimilar.” Baird, 192 F.3d at
468. Section 504 of the Rehabilitation Act states that “[n]o
otherwise qualified individual with a disability . . . shall, solely
by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination” by specified entities. 29 U.S.C. § 794(a)
(emphasis added). However, the ADA prohibits discrimination
against an individual “by reason of such disability.” 42 U.S.C.
§ 12132 (emphasis added). We squarely held in Newman that
this language in the ADA clearly establishes that the “sole
reason” standard adopted by the District Court is inapplicable to
the ADA, which requires only but for causation. See 60 F.3d at
                                20
analytically distinct and must be approached accordingly.5

       The principal difference between the equal protection and
the ADA inquiry is that, in an as applied or facial equal
protection challenge, the plaintiff bears the burden of negating
all conceivable rational justifications for the allegedly
discriminatory action or statute, Board of Trustees of the Univ.
of Alabama v. Garrett, 531 U.S. 356, 367 (2001), whereas 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. Newman v. GHS Osteopathic,
Inc., 60 F.3d 153, 157-58 (3d Cir. 1995).6 A facially
discriminatory statute based on a non-suspect class (such as 53
PA. CONS. STAT. ANN. § 10621) will survive an equal protection
challenge unless it is based on a bare desire to harm a politically


157-158.
      5
      We address the federal statutory challenges first, both
because they involve a less stringent standard and because we
have an obligation not to decide constitutional questions unless
necessary. See, e.g., Spector Motor Serv., Inc. v. McLaughlin,
323 U.S. 101, 105 (1944).
  6
   We noted in Newman that “courts addressing the allocations
of burdens of proof and persuasion under the ADA uniformly
have looked for guidance to Title VII.” 60 F.3d at 157. The
Supreme Court held in Price Waterhouse v. Hopkins, 490 U.S.
228 (1989), that, for Title VII cases, “because of” does not mean
“solely because of.” Id. at 241.
                               21
unpopular group or “a classification whose relationship to an
asserted goal is so attenuated as to render the distinction
arbitrary or irrational.” City of Cleburne v. Cleburne Living
Center, 473 U.S. 432, 446 (1985). A statute that facially
discriminates against disabled individuals, however, faces a far
different and more skeptical inquiry under the ADA and
Rehabilitation Act.

       Section 12132 of Title II of the ADA provides that
“[s]ubject to the provisions of this subchapter, no qualified
individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. §
12132. This statement constitutes a general prohibition against
discrimination by public entities, regardless of activity.7 Bay
Area Addiction Research and Treatment, Inc. v. City of Antioch,
179 F.3d 725, 730-31 (9th Cir. 1999) (striking down a ban on
methadone clinics within 500 feet of a residential area). Section
504 of the Rehabilitation Act similarly provides that “[n]o
otherwise qualified individual with a disability . . . shall, solely
by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance.” 29 U.S.C. § 794(a). We have noted that


   7
    The City of Reading is a qualifying public entity. See 42
U.S.C. § 12131(1)(A).
                                22
“[a]s the ADA simply expands the Rehabilitation Act’s
prohibitions against discrimination into the private sector,
Congress has directed that the two acts’ judicial and agency
standards be harmonized” and we will accordingly analyze the
two provisions together. Newman, 60 F.3d at 157-58; see also
Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37,
44 (2d Cir. 1997).

       The Sixth and Ninth Circuits have considered the issue
of whether a municipal ordinance prohibiting methadone clinics
within 500 feet of a residential area violated the general
proscription contained in the ADA and Rehabilitation Act. See
MX Group, Inc. v. City of Covington, 293 F.3d 326, 342 (6th
Cir. 2002); Bay Area, 179 F.3d at 737. Both Courts concluded
that the ordinances were “facially discriminatory laws” and
therefore “present[ed] per se violations of § 12132.” Bay Area,
179 F.3d at 737; see MX Group, 293 F.3d at 342.8


   8
    One District Court struck down an ordinance functionally
identical to 53 PA. CONS. STAT. ANN. § 10621. Smith-Berch,
Inc. v. Baltimore County, Md., 115 F. Supp. 2d 520, 523 (D.
Md. 2000). That Court reasoned that a statute that facially
singled out methadone clinics imposed a disparate impact on
methadone users. Although we agree with the Sixth and Ninth
Circuits that such statutes are properly analyzed as facial
violations of the ADA and Rehabilitation Act, we nevertheless
concur with the Smith-Berch Court’s ultimate conclusion. The
District Court rejected the argument that a public hearing
requirement was necessary to the local zoning scheme. Id. at
                               23
       The Ninth Circuit confronted many of the issues
presented in this case when the Bay Area Addiction Research
and Treatment, Inc. (“BAART”) and California Detoxification
Programs, Inc. (“CDP”) tried to relocate their methadone clinic
to the City of Antioch, California. Bay Area, 179 F.3d at 727.
BAART had been operating a methadone clinic near the
courthouse in Pittsburg, California for 13 years. BAART and
CDP received notice from Antioch that the proposed location
could be used for a methadone clinic under Antioch’s zoning
plan. However, the Antioch City Council enacted an urgency
ordinance banning methadone clinics within 500 feet of
residential areas, thereby barring use of the proposed site.
BAART and other plaintiffs alleged that Antioch had violated
both Title II of the ADA and § 504 of the Rehabilitation Act.
The District Court denied Bay Area’s motion for a preliminary
injunction enjoining the ordinance. BAART appealed. See id.

       After disposing of issues not contested in the instant case,
the Ninth Circuit analyzed whether the District Court had
abused its discretion by denying the preliminary injunction in
part because BAART did not have a likelihood of success on the
merits. Id. at 733. The Ninth Circuit held that the District
Court had abused its discretion by applying an erroneous legal
standard and remanded the case. Id. The Ninth Circuit first



524. The Smith-Berch Court emphasized that there was no
non-discriminatory reason to differentiate methadone treatment
centers from other drug rehabilitation centers. Id.
                                24
held that the District Court erred by applying the “reasonable
modification” test to a facially discriminatory law. See id. at
734-35. U.S. Department of Justice regulations require that
would-be plaintiffs request reasonable modifications to avoid
discrimination unless the modification would fundamentally
alter the program, activity, ordinance, or statute. 28 C.F.R. §
35.130(b)(7). However, where the “statute discriminates against
qualified individuals on its face rather than in its application,”
the applicable regulation interpreting Title II, which only
requires “reasonable” accommodation, makes little sense. Bay
Area, 179 F.3d at 734. The only way to alter a facially
discriminatory ordinance is to remove the discriminating
language. The Antioch ordinance could only have been
“rendered facially neutral by expanding the class of entities that
may not operate within 500 feet of a residential neighborhood to
include all clinics at which medical services are provided, or by
striking the reference to methadone clinics entirely,” and,
“[e]ither modification would fundamentally alter the zoning
ordinance, the former by expanding the covered establishments
dramatically, and the latter by rendering the ordinance a nullity.”
Id. Therefore, the reasonable modifications test could not apply
to a facially discriminatory ordinance. See id. at 735 (holding
that “facially discriminatory laws present per se violations of §
12132”).

       The Ninth Circuit noted that this determination does not
end the inquiry, however, as both statutes withhold protection
from any “individual who poses a significant risk to the health
or safety of others that cannot be ameliorated by means of a
                               25
reasonable modification.” Id. The Supreme Court developed
the significant risk test in School Board of Nassau County v.
Arline, a case involving a teacher who alleged a violation of §
504 of the Rehabilitation Act after she was discharged because
she had an active case of tuberculosis. 480 U.S. 273, 276
(1987). The Supreme Court held that “[a] person who poses a
significant risk of communicating an infectious disease to others
in the workplace will not be otherwise qualified for his or her
job if reasonable accommodation will not eliminate that risk.”
Id. at 287 n.16. The Court essentially incorporated a significant
risk test into the Rehabilitation Act’s definition of a disabled
person qualified to receive § 504’s protection. The Court noted
that this test effectuates § 504’s “goal of protecting handicapped
individuals from deprivations based on prejudice, stereotypes,
or unfounded fear, while giving appropriate weight to such
legitimate concerns . . . as avoiding exposing others to
significant health and safety risks.” Id. at 287.

       Although the Ninth Circuit disclaimed any conclusion
about the outcome of this inquiry or the ultimate merits of the
claim, it repeatedly emphasized that Arline was designed to
“ensure[] that decisions are not made on the basis of ‘the
prejudiced attitudes or the ignorance of others,’” and that “[t]his
is particularly important because, as with individuals with
contagious diseases, ‘[f]ew aspects of a handicap give rise to the
same level of public fear and misapprehension,’ as the
challenges facing recovering drug addicts.” Bay Area, 179 F.3d
at 736 (internal citations omitted) (citing Arline, 480 U.S. at
284). The Ninth Circuit held that, in order for a methadone
                               26
clinic to fail the significant risk test, it must present “severe and
likely harms to the community that are directly associated with
the operation of the methadone clinic.” Id. at 736-37. Such
alleged harms must be supported by evidence and “may include
a reasonable likelihood of a significant increase in crime.” Id.
The Ninth Circuit noted that courts should be mindful of the
ADA and Rehabilitation Act’s goals of eliminating
discrimination against individuals with disabilities and
protecting those individuals “from deprivations based on
prejudice, stereotypes, or unfounded fear.” Id. at 737 (citing
Arline, 480 U.S. at 287). Therefore, “it is not enough that
individuals pose a hypothetical or presumed risk”–the evidence
must reflect a risk that is significant and harm that is serious. Id.

        Three years later, the Sixth Circuit invoked Bay Area and
reached a similar result in MX Group v. City of Covington. 293
F.3d 326, 344-45 (6th Cir. 2002). MX Group is a for-profit
operator of methadone clinics. Id. at 328-29. In 1997, they
began the process of locating a suitable site for a methadone
clinic in Covington, Kentucky. MX Group selected a location
and Covington’s zoning administrator issued them a permit.
Public outcry spurred the Covington Board of Adjustment to
overrule the issuance of the permit. MX Group located another
suitable site, prompting the city solicitor to inform the zoning
administrator that methadone clinics were not a permitted use
anywhere in the city. Shortly thereafter, Covington adopted an
amendment to the zoning code expanding the definition of
“addiction treatment facility” in the zoning code to include any
place whose primary function is to care for the chemically
                                27
dependent. This term had applied only to programs that
provided overnight or housing accommodations. The ordinance
limited the number of all such facilities to one facility for every
20,000 persons in the city. This amendment prevented MX
Group from locating a facility in the city. Id. at 330-31.
However, the zoning administrator testified at trial that it was
his impression from the city solicitor that amendments
permitting individual clinics would be considered on a case-by-
case basis. Id. at 331. MX Group brought suit pursuant to the
ADA and Rehabilitation Act. The District Court held that
Covington’s denial of the permit and the subsequently enacted
amendment violated both federal statutes. Id. at 328.

        Covington alleged that the District Court had committed
various errors of law, of which only one is relevant
here–whether the District Court correctly concluded that MX
Group was not required to request a reasonable modification.
Id. at 334. The Sixth Circuit cited Bay Area approvingly and
rejected the “reasonable accommodation argument because it is
inapplicable inasmuch as the ordinance at issue is facially
discriminatory.” Id. The Sixth Circuit noted that “the district
court found that the blanket prohibition of all methadone clinics
from the entire city is discriminatory on its face,” agreed with
that conclusion, and also agreed with the Ninth Circuit “that it
would make little sense under these circumstances to require
Plaintiff to seek an accommodation, when the only
accommodation, a fundamental change to the ordinance, could
not be considered reasonable.” Id. at 335.


                                28
       Although Bay Area and MX Group dealt with outright
bans, we believe that the reasoning of those cases is equally
applicable here. The Pennsylvania statute imposes a ban on the
establishment of methadone clinics within 500 feet of many
structures, including schools, churches, and residential housing
developments. See 53 PA. CONS. STAT. ANN. § 10621(a)(1).
The Pennsylvania law differs from those in Bay Area and MX
Group in that the “the governing body for the municipality in
which the proposed methadone treatment facility is to be
located” can waive the ban if, and only if, it approves the
issuance of a permit by majority vote. 53 PA. CONS. STAT. ANN.
§ 10621(b). However, this ability of municipalities to waive the
statutory ban in no way alters the fact that 53 PA. CONS. STAT.
ANN. § 10621 facially singles out methadone clinics, and
thereby methadone patients, for different treatment, thereby
rendering the statute facially discriminatory.

        We agree with the Sixth and Ninth Circuits that a law that
singles out methadone clinics for different zoning procedures is
facially discriminatory under the ADA and the Rehabilitation
Act. We also agree that it is inappropriate to apply the
“reasonable modification” test to facially discriminatory laws.
See MX Group, 293 F.3d at 344-45; Bay Area, 179 F.3d at 734-
35. The only way to modify a facially discriminatory statute is
to remove the discriminatory language. However, amending 53
PA. CONS. STAT. ANN. § 10621 to remove the facial
discrimination against methadone clinics would “fundamentally
alter” the statute. Bay Area, 179 F.3d at 734.


                               29
        Having concluded that 53 PA. CONS. STAT. ANN. § 10621
is facially discriminatory and that the reasonable modification
test does not apply, we proceed to inquire whether NDTS’s
clients pose a significant risk. This inquiry is also referred to as
the “direct threat” defense in cases arising under Title I of the
ADA. Bragdon v. Abbott, 524 U.S. 624, 662 (1998) (Stevens,
J., concurring). The Court’s analysis of the Rehabilitation Act
in Arline remains the guiding precedent. See Arline, 480 U.S.
at 278-79. The Court concluded that contagious diseases such
as tuberculosis fit within the Rehabilitation Act’s definition of
“handicapped,” and then addressed the question of whether the
plaintiff was otherwise qualified for her job as an elementary
school teacher. Id. at 279. The Court held that “[a] person who
poses a significant risk of communicating an infectious disease
to others in the workplace will not be otherwise qualified for his
or her job if reasonable accommodation will not eliminate that
risk.” Id. at 287 n.16. The Court adopted the language
proposed by amicus curiae the American Medical Association,
stating the significant risk inquiry should include consideration
of four factors: the nature of the risk, the duration of the risk, the
severity of the risk, and the probability that the potential harm
will occur. Donahue v. Consol. Rail Corp., 224 F.3d 226, 231
(3d Cir. 2000) (citing Arline, 480 U.S. at 288).

       The Arline Court limited its decision to cases where a
significant risk is alleged on the basis of an infectious disease.
See 480 U.S. at 289. The ADA and subsequent cases expanded
the significant risk test to cases where a disability created a
significant risk to the health or safety of others, such as attention
                                 30
deficit hyperactive disorder, see Robertson v. Neuromedical
Ctr., 161 F.3d 292, 295-96 (5th Cir. 1998), depression, see
EEOC v. Amego, Inc., 110 F.3d. 135, 143-45 (1st Cir. 1997),
diabetes, see Turco v. Hoechst Celanese Corp., 101 F.3d 1090,
1094 (5th Cir. 1996) , violent employees, see Palmer v. Cir. Ct.
of Cook County, 117 F.3d 351, 353 (7th Cir. 1997), or epileptics
whose jobs involve operating potentially dangerous machinery.
See Donahue, 224 F.3d at 231.

        The Supreme Court emphasized in Bragdon v. Abbott
that the significant risk test requires a rigorous objective inquiry.
524 U.S. 624, 626 (1998). In Bragdon, a dentist refused to fill
a cavity for an asymptomatic AIDS patient. See id. The Court
held that:

       The existence, or nonexistence, of a significant
       risk must be determined from the standpoint of
       the person who refuses the treatment or
       accommodation, and the risk of assessment must
       be based on medical or other objective evidence.
       . . . As a health care professional, petitioner had
       the duty to assess the risk of infection based on
       the objective, scientific information available to
       him and others in his profession. His belief that
       a significant risk existed, even if maintained in
       good faith, would not relieve him of liability.

Id. at 649. Accordingly, we cannot base our decision on the
subjective judgments of the people purportedly at risk, the
Reading residents, City Council, or even Pennsylvania citizens,

                                31
but must look to objective evidence in the record of any dangers
posed by methadone clinics and patients. The purported risk
must be substantial, not speculative or remote. See id. at 649
(“Because few, if any, activities in life are risk free, Arline and
the ADA do not ask whether a risk exists, but whether it is
significant.”). The Plaintiffs are not required to show that they
pose no risk at all.9 See id.



  9
   Although the concept of significant risk has been much more
fully considered in the Title I context, courts have not come to
an agreement in either Title I or Title II cases as to where the
burden lies. Some courts have held that whether there is a
significant risk is a factor in whether a plaintiff is “qualified”
within the meaning of the statute. These courts conclude that
the plaintiff bears the burden of demonstrating that they do not
pose a significant risk. See Rizzo v. Children’s World Learning
Ctrs., Inc., 213 F.3d 209, 213 (5th Cir. 2000); EEOC v. Amego,
Inc., 110 F.3d 135, 142-44 (1st Cir. 1997). Other courts view
“direct threat” as an affirmative defense. These courts reason
that the burden is on the defendant to show that the plaintiff
poses a significant risk. These courts note that the direct threat
provision appears in a section of Title I entitled “Defenses.” See
Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247-48 (9th
Cir. 1999); EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276,
1283-85 (7th Cir. 1995).
        We have previously reserved judgment on this issue
when it was “unnecessary to decide this question,” and do so
again in this case as it would not affect our holding. Donahue
v. Consolidated Rail Corp., 224 F.3d 226, 230 (3d Cir. 2000).
                                32
       The record contains ample evidence that NDTS’s clients,
and methadone patients as a class, do not pose a significant risk.
Neither the City nor its amicus, the Commonwealth, have
offered any evidence to the contrary. The City refers to the
deposition of Glen Cooper, the Executive Director of NDTS, in
which he estimated that 20 to 30 percent of the clinic’s patients
would test positive for illegal drugs. However, NDTS also
submitted the results of drug screens at its West Reading and
Bethlehem clinics showing that only patients enrolled for less
than six months test positive at the 30 percent rate, whereas less
than six percent of patients enrolled for more than six months
test positive for illegal drugs.

        More importantly, the record demonstrates no link
between methadone clinics and increased crime. Cooper
testified that there had been no criminal incidents at NDTS’s
West Reading facility. The Commonwealth offered no evidence
to support its contrary assertion that there is a “frequent
association” between methadone clinics and criminal activity.
In depositions, City Council members expressed concerns about
heavy traffic, loitering, noise pollution, littering, double parking,
and jaywalking. However, the City offered no evidence to
support an association between these concerns and methadone
clinics. Even if such connections existed, we are skeptical that
they would qualify as the substantial harms contemplated by the
Arline and Bragdon Courts.

      The brief legislative history of 53 PA. CONS. STAT. ANN.
§ 10621 provides no further evidence that methadone patients
                                33
pose a significant risk. Representative Platts, the bill’s principal
sponsor, stated that the legislation would protect “children from
the high crime rates associated with heroin addicts,” that, “[o]n
average heroin addicts before treatment commit a crime on
average 200 days of the year,” and that “[e]ven after 6 months
of methadone treatment, they still average once a month
committing a crime.” Representative Platts offered no source
for this statistic. We find it difficult to place much weight on
this unsupported statistic given Cooper’s unrebutted testimony
that other NDTS 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. In
addition, the statement of Representative Serafini betrays the
generalized prejudice and fear warned against by the Arline
Court:

       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.

       On one hand, we have before us uncontroverted
                                34
testimony that NDTS’s methadone treatment facilities have not
experienced any criminal incidents or other potentially
dangerous behavior. We have the objective viewpoints of the
National Institute on Drug Abuse and the Office of National
Drug Control Policy, brought to our attention by amicus curiae,
the Pennsylvania Community Providers Association. On the
other hand, neither the City nor amicus, the Commonwealth of
Pennsylvania, offered any evidence in the proceedings below or
in the statute’s legislative history demonstrating that methadone
patients pose a significant risk. The Arline Court specifically
recognized that the Rehabilitation Act was meant to protect
disabled individuals “from deprivations based on prejudice,
stereotypes, or unfounded fear.” 480 U.S. at 287; see also
Innovative Health, 117 F.3d at 49.              The speculative,
hypothetical, and unsupported statements in 53 PA. CONS. STAT.
ANN. § 10621’s legislative history and in the record of the
Reading City Council meeting do not suffice to create a triable
issue of fact as to whether NDTS’s clients, or methadone
patients generally, pose a significant risk.

       We have no doubt that some methadone patients are
inclined to criminal or otherwise dangerous behavior. However,
in the words of the Arline Court:

       The fact that some persons who have contagious
       diseases may pose a serious health threat to others
       under certain circumstances does not justify
       excluding from the coverage of the Act all
       persons with actual or perceived contagious

                               35
       diseases. Such exclusion would mean that those
       accused of being contagious would never have the
       opportunity to have their condition evaluated in
       light of medical evidence and a determination
       made as to whether they were “otherwise
       qualified.” Rather, they would be vulnerable to
       discrimination on the basis of
       mythology–precisely the type of injury Congress
       sought to prevent.

480 U.S. at 285.

        We will reverse the order of the District Court and
remand with instructions that it grant NDTS’s motion for partial
summary judgment because 53 PA. CONS. STAT. ANN. § 10621
facially violates the ADA and the Rehabilitation Act. We need
not reach the question of whether 53 PA. CONS. STAT. ANN. §
10621 facially violates the Equal Protection Clause of the
Fourteenth Amendment, as the statute fails the less stringent
tests required by the ADA and the Rehabilitation Act.10




  10
    Plaintiffs argued before the District Court that § 504 of the
Rehabilitation Act and Title II of the ADA preempt 53 PA.
CONS. STAT. ANN. § 10621. As Plaintiffs do not argue this issue
on appeal, it is waived.
                               36
   2. Whether the individual plaintiffs have standing to
     make out ADA and Rehabilitation Act challenges

        The Pennsylvania statute is facially invalid under the
ADA and the Rehabilitation Act. Because of that, the individual
plaintiffs’ standing has no impact on the issue of injunctive
relief. However, the individual plaintiffs also assert claims to
damages under the ADA and the Rehabilitation Act. The
District Court must reach the issue of the individual plaintiffs’
standing in order to resolve their claims for damages.11


  11
    We recognized in Addiction Specialists, Inc. v. Township of
Hampton that methadone clinic providers may assert both direct
standing based on their own injuries and associational standing
based on injuries to the disabled individuals they serve. See 411
F.3d 399, 407 (3d Cir. 2005). A third-party may only assert
claims based on the injuries of others to the extent that those
who suffered the direct harm would themselves have standing
to sue. See Hunt v. Washington State Apple Adver. Comm’n.,
432 U.S. 333, 343 (1977). Third-party standing is closely
related to facial challenges, in which a single party asserts that
a law is invalid not only as applied to them, but as applied to all
parties that might come before the court. See Broadrick v.
Oklahoma, 413 U.S. 601, 610-11 (1973) (“Embedded in the
traditional rules governing constitutional adjudication is the
principle that a person to whom a statute may constitutionally be
applied will not be heard to challenge that statute on the ground
that it may conceivably be applied unconstitutionally to others,
in other situations not before the Court. A closely related
principle is that constitutional rights are personal and may not be
                               37
asserted vicariously.” (internal citations omitted)); United States
v. Raines, 362 U.S. 17, 21 (1960). But see Richard H. Fallon,
As-Applied and Facial Challenges and Third-Party Standing,
113 HARV. L. REV. 1321, 1359-64 (2000) (examining the
differences between facial challenges and third-party standing).
        Therefore, every individual plaintiff harmed by the
application of the Pennsylvania statute is not necessarily entitled
to damages by virtue of NDTS’s successful demonstration that
the statute facially violates the ADA and Rehabilitation Act.
Individual plaintiffs may have suffered a harm because the ease
or timeliness of their methadone treatment was compromised by
operation of the invalid statute. However, if they are current
users of illegal drugs, their statutory rights under the ADA and
Rehabilitation Act have not been invaded–indeed, current users
of illegal drugs are entirely exempted from the ambit of the
statute when the allegedly discriminatory action was taken on
the basis of that illegal drug use. See 42 U.S.C. § 12210(a); 29
U.S.C. § 705(20)(C)(i). Neither NDTS’s associational standing
nor its facial challenge can secure damages for individual
plaintiffs when they themselves have not suffered a violation of
their rights and lack standing. Therefore, the District Court
should consider the individual plaintiffs’ standing under the
ADA and Rehabilitation Act and, if the District Court finds that
some of the individual plaintiffs lack standing, it should proceed
to their as-applied equal protection challenge.
        The fact that some plaintiffs were not harmed under the
ADA and Rehabilitation Act does not necessarily support the
facial validity of the Pennsylvania statute. If the Pennsylvania
General Assembly had passed a statute regulating only current
illegal drug users, then the ADA and Rehabilitation Act could
                                38
        The parties do not dispute that recovering heroin addicts
are presumptively “qualified” persons under the ADA and
Rehabilitation Act. See 42 U.S.C. § 12131; 29 U.S.C. § 794(a).
However, both the ADA and the Rehabilitation Act contain
carve-outs stating that individuals are not deemed “qualified” if
they are “currently engaging in the illegal use of drugs” when
the “covered entity [the City] acts on the basis of” the plaintiff’s
drug addiction. See 42 U.S.C. § 12210(a); 29 U.S.C. §
705(20)(C)(i). Plaintiffs are not considered “qualified” under
the statutes if they have used illegal drugs “recently enough so
that continuing use is a real ongoing problem.” Brown v. Lucky
Stores, Inc., 246 F.3d 1182, 1188 (9th Cir. 2001). This statutory
exception is an odd fit for the instant case. It was intended to
ensure that employers could discharge employees who were
actually under the influence while at work and that employers
could not discharge employees who were recovering addicts but
were, at the time of any personnel action, drug free. See id.
(quoting H.R. REP. NO. 101-596, at 62 (1990) (Conf. Rep.)).
This provision makes its first appearance at 42 U.S.C. §
12114(a), where it applies to Subchapter I of the ADA,
concerning employment. However, this provision reappears



not be offended if a covered entity took action based on that
drug use. However, the record makes clear that methadone
clinics serve a combination of current and rehabilitated drug
users.
                                39
verbatim in “Subchapter IV: Miscellaneous Provisions,” which
makes it applicable to the entire ADA. This perplexing
draftsmanship, which appears to make surplusage of the
provision in the employment section, mandates that we apply
this provision to Subchapter II, 42 U.S.C. § 12210(a)–even
though it is unclear how the provision should apply outside the
employment context.

        First, NDTS contends that the appropriate time frame for
this inquiry is 2004, when it filed the complaint in the District
Court, similar to a traditional standing analysis. The City
responds that the statutory text specifies that the relevant time
frame is when the covered entity took its allegedly
discriminatory action. We agree with the City inasmuch as both
the ADA and Rehabilitation Act both state that an individual
does not enjoy these statutory protections if “currently engaging
in the illegal use of drugs, when the covered entity acts on the
basis of such use.” 42 U.S.C. § 12210(a); see 29 U.S.C. §
705(20)(C)(i) (same).

       Less clear is the question of whether the City “acted on
the basis of” the individual plaintiffs’ addictions. See 42 U.S.C.
§ 12210(a); 29 U.S.C. § 705(20)(C)(i). The City asserts that it
acted on the basis of non-discriminatory reasons, such as traffic
and loitering. NDTS contends that the City acted on the basis
of general fear and prejudice associated with recovering heroin
addicts. NDTS wants to have its cake and eat it too. It claims
that the City’s allegedly discriminatory motive does not
constitute action on the basis of a drug addiction, but action
                               40
against recovering addicts. However, much of the evidence in
the record to which NDTS refers illustrates the City’s concern
about the possibility of NDTS’s clients relapsing into drug use.

        The ADA and Rehabilitation Act specifically provide that
a person who has completed a supervised rehabilitation program
or is currently participating in such a program and “is no longer
engaging” in drug use shall be deemed a qualified individual.
42 U.S.C. § 12210(a) and (b)(1); 29 U.S.C. § 705(20)(C)(i) and
(C)(ii)(I). The Ninth Circuit has observed that “[m]ere
participation in a rehabilitation program is not enough,” and that
covered entities “are entitled to seek reasonable assurances that
no illegal use of drugs is occurring.” Brown, 246 F.3d at 1188.
These statutory qualifications weigh against the logic of
deeming the City to have acted solely on the basis of the
plaintiffs’ status as recovering addicts–even if we accept
NDTS’s version of the City’s motivation.

       The Second Circuit has recognized that the question of
whether drug use is effectively ongoing or a serious problem is
a fact bound inquiry best left to the district courts. Teahan v.
Metro-North Commuter R.R. Co., 951 F.2d 511, 518-20 (2d Cir.
1991). This determination requires detailed knowledge of
methadone treatment protocols to assess whether a currently
enrolled methadone patient who relapsed, for example, three
months ago, is likely to relapse again. The parties do not
dispute that one plaintiff, Coe, has been drug free for some time.
However, three other plaintiffs, Joe, Loe, and Poe, had been
drug free for only three months prior to the permit denial. Id.
                               41
We will remand with instructions that the District Court closely
consider whether the individual plaintiffs’ drug use posed a “real
ongoing problem.” Brown, 246 F.3d at 1188.

       3. Whether the City violated the Fourteenth
       Amendment’s guarantee of Equal Protection

        The District Court should also consider NDTS’s as
applied challenge under the Equal Protection Clause of the
Fourteenth Amendment if it finds that any of the individual
plaintiffs lack standing under the ADA and the Rehabilitation
Act. NDTS alleges the City improperly administered 53 PA.
CONS. STAT. ANN. § 10621 as applied to their permit application
for the Reading facility. The City replies that NDTS failed to
show that prejudice was a motivating factor and, in the
alternative, that the City met its burden of demonstrating a
legitimate, non-discriminatory purpose.

        The parties agree that classifications based on disabled
individuals, such as recovering heroin addicts, are reviewed
under the rational basis test which requires a rational means to
serve a legitimate end. City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 450 (1985) (holding that the decision to refuse a
permit to a home for the “mentally retarded” failed the rational
basis test). Yet the City asserts that Cleburne “is distinguishable
because unlike [NDTS], the Appellants [in Cleburne] had
presented evidence that the decision to deny the special use
permit for homes for the mentally retarded was based on mere
negative attitudes and fear that was unsubstantiated by factors
                               42
which are properly cognizable.” NDTS has adduced evidence
of a similar character. The records of the City Council hearings
contain numerous statements by both public participants and
council members expressing opposition based on what can only
be characterized as generalized prejudice, stereotypes, and fear
of NDTS’s clientele.12


   12
      The records of the three City Council hearings are replete
with statements by participants illustrating the atmosphere of
prejudice and fear that permeated the proceedings. Participants
stated that the new NDTS facility would “compromise the
quality of life for children and families residing in this area,”
would disrupt “this stable, residential area,” would “further
decline the quality of life opportunities for families residing in
the area,” would “break [the] community spirit,” would “have a
detrimental effect on the family spirit of the neighborhood
community,” would “have a detrimental effect on the
neighborhood and community businesses,” and might “require
additional police patrol.” One participant opined that “the
community would not be able to face the additional stress
brought by the treatment facility.” Another participant observed
that:

        [T]he overall community opposes the location of
        the clinic on Lancaster Avenue. The community
        believes that the location of the clinic in this area
        will destroy neighborhood and family standards.
        [The community wants the] Council to recognize
        the effect this clinic will have on their community
        and property values. . . . [I]f existing hospitals
                                43
       will not accept the clinic as a tenant, the medical
       profession may not believe in this type of
       treatment.

       An attorney representing “citizens of the Millmont area,”
engaged in an extended colloquy with Glen Cooper, Executive
Director of NDTS, at the initial City Council hearing on January
14, 2002:

               Attorney questions (Q): What do you tell
       the neighborhood that you’re moving in, a
       community that you didn’t investigate, the
       neighbors you didn’t see, the residents whose
       property values may or may not be affected?
       What do you give them to suggest in some way
       their kids aren’t going to be affected, their
       property is not going to be affected? How do you
       explain that to them?
               Cooper answers (A): Explain what?
               Q: Whether or not they will or will not be
       affected, their property values, if their kids will be
       involved with heroin addicts or ex-addicts or
       methadone addicts.
               A: I don’t offer an explanation. I don’t
       see that that’s been an issue. It’s never been an
       issue. . . . Do you have any evidence that that’s
       an issue?
               Q: I suspect that common sense would tell
       anybody that they’re not going to purchase a
       house next to a methadone clinic with heroin
                                44
      addicts.
              A: I’m talking about children being
      involved. You raised the question about children
      being involved. Do you have any evidence? Do
      you have an example?
              Q: That children will be–children will be
      within 500 feet.
              A: That wasn’t my question. My question
      was, Do you have evidence that that is a typical
      problem in relationship to methadone treatment
      facilities?
              Q: I have a daughter, and I don’t want her
      near a methadone clinic.
              A: So, you don’t have any evidence.
              Q: I do have personal evidence. I don’t
      want my 10-year-old daughter at a methadone
      clinic or within 500 feet of a methadone clinic, if
      I can help it. And if I lived next to there, I would
      move.
              A: Well, you don’t have any reason to
      believe, any statistical reason to believe, that that
      would be a problem. You just have a gut feeling
      that you wouldn’t like it.
              Q: I’d use common sense.

        City Council member Waltman stated “that this method
of treatment condones addiction,” and that “the City should be
considering a Police substation for this area rather than a
methadone clinic that will compromise the stability of the
community.” City Council member Kerns claimed that “the
                              45
       We have suggested, albeit in a different context, that a
factually similar claim would have a likelihood of success. See
Sullivan v. City of Pittsburgh, 811 F.2d 171, 185 (3d Cir. 1987).
We considered in Sullivan a request by recovering alcoholics for
a preliminary injunction requiring issuance of a permit for the
operation of a treatment center for alcoholics. Id. The Sullivan
Court observed that:

       Appellees showed that the City’s alleged concern
       about a drop in property values was irrational
       since ARC [the operator of the treatment centers]
       had operated in the neighborhood for some years
       and adduced evidence indicating that property
       values would not be adversely affected by the
       Center’s presence. Appellees also established that
       the City’s alleged concern with orderly
       development was irrational since ARC was
       already located in the North Side Section.
       Additionally, appellees demonstrated that ARC
       facilities met lot size and other zoning
       requirements and that the City’s alleged concerns
       about density were addressed by density
       ordinances with which ARC had complied. And
       finally, here as in Cleburne, appellees
       demonstrated that the City took its essentially


potential damage a clinic could do that would break the
community spirit.”
                               46
       unjustified action in an atmosphere charged with
       hostility towards a minority group. These proofs,
       and their lack of contradiction by the City, lead us
       to conclude that, in light of Cleburne, class action
       plaintiffs-appellees are likely to prevail on the
       merits of their Equal Protection claim.

Id. (likening the recovering alcoholics’ claim to that made in
Cleburne).

        The City claims that it met its burden of showing
legitimate purposes motivating its decision. The District Court
observed that the City Council expressed concerns about heavy
traffic, loitering, noise pollution, littering, double parking, and
jaywalking. Yet we consider it inexplicable that the City failed
to offer any evidence to support these concerns. Indeed, the
District Court appears to have relied on depositions of the
Council members which are not supported by the records of the
three City Council meetings. Records of these meetings contain
no reference by the Council members to jaywalking, loitering,
littering, double parking, or increased traffic. The only
reference appears in Cooper’s response to Council member
Figueroa’s general question about “problem[s] with citizens of
West Reading,” to which he responded that loitering and
littering problems at its West Reading facility were minimal.
The concern raised by Council member Reed in her deposition
about double parking does not account for NDTS’s statement
that the new facility would have 20 off-street parking spaces.


                                47
        The able District Judge also failed to adequately consider
whether any of these asserted legitimate concerns differentiated
the proposed NDTS facility from permitted uses of the 700
Lancaster Avenue site. See Cleburne, 473 U.S. at 448 (holding
that the City of Cleburne could not treat the facility for the
mentally retarded differently “unless [it] would threaten
legitimate interests of the city in a way that other permitted uses
such as boarding houses and hospitals would not”). On remand,
the District Court should consider whether asserted legitimate
purposes apply equally to permitted uses when deciding whether
the purported legitimate purposes are pre-textual. Id. The
Lancaster Avenue site is zoned commercial highway and
therefore includes among its permitted uses gas stations, beer
distributors, convenience stores, emergency health care
facilities, motels, nightclubs, and miniature golf courses. The
prior occupant, the Berks Counseling Center, treated recovering
drug and alcohol addicts as well as mentally ill patients. The
record contains no evidence of complaints from nearby
residents. The District Court should focus particularly on
whether there is any rational reason to differentiate methadone
treatment centers, such as those operated by NDTS, from non-
methadone drug treatment centers, such as the Berks Counseling
Center.

       A reasonable trier of fact could conclude, on the present
record, that no “reasonably conceivable state of facts . . . could
provide a rational basis” for denying NDTS’s requested permit.
Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367
(2001). What is presented, then, is a triable issue of material
                               48
fact.

   4. Whether the District Court abused it discretion by
        denying the motion for class certification.

         NDTS argues that the District Court abused its discretion
by denying without prejudice their motion for class certification.
The District Court’s only stated reason was that NDTS had
failed to “provid[e] Defendant with the information necessary
for Defendant to determine whether the named class
representatives can represent the class adequately.” It is not
clear what further information is required, as NDTS responded
to all the City’s requests for information on the named plaintiffs,
including their identities.13

        The named plaintiffs bear the burden of showing class
eligibility and failed to file affidavits specifically in support of
their motion for class certification. However, the District
Court’s denial of class certification does not provide sufficient
information for us to engage in meaningful appellate review.
We have held that “[a]dequate representation depends on two
factors: (a) the plaintiff’s attorney must be qualified,
experienced, and generally able to conduct the proposed

  13
     The District Court granted the individual plaintiffs’ motion
to proceed in pseudonym on the same day it denied their motion
for class certification. The District Court required only that the
Defendant’s counsel receive the individual plaintiffs’ full
names, which was duly done.
                                49
litigation, and (b) the plaintiff must not have interests
antagonistic to those of the class.” Wetzel v. Liberty Mut. Ins.
Co., 508 F.2d 239, 247 (3d Cir. 1975).

        The City does not dispute that Plaintiffs’ counsel are able
to handle the litigation, supporting the conclusion that the class
would be adequately represented. See Grasty v. Amalgamated
Clothing & Textile Workers Union, etc., 828 F.2d 123, 129 (3d
Cir. 1987) (noting that “the assurance of vigorous prosecution”
by class counsel is a “significant factor” in the Rule 23(a)(4)
analysis); Greenfield v. Villager Industries, Inc., 483 F.2d 824,
832 (3d Cir. 1973) (“Experience teaches that it is counsel for the
class representative, and not the named parties, who direct and
manage these actions.”).

        The record is sufficiently developed to support the
conclusion that the named plaintiffs could adequately represent
the class. Rule 23(a)(4)’s requirement that a class representative
“fairly and adequately protect the interests of the class” mainly
seeks “to uncover conflicts of interest between named parties
and the class they seek to represent.” In re Warfarin Sodium
Antitrust Litig., 391 F.3d 516, 532 (3d Cir. 2004); see FED. R.
CIV. P. 23(a)(4). A class representative need only possess “a
minimal degree of knowledge necessary to meet the adequacy
standard.” Szczubelek v. Cendant Mortgage Corp., 215 F.R.D.
107, 119 (D.N.J. 2003). Conflicts of interest are rare in Rule
23(b)(2) class actions seeking only declaratory and injunctive



                                50
relief.14 See FED. R. CIV. P. 23(b)(2). Further discovery is
unlikely to reveal any actual or potential conflict. The parties do
not dispute that all of the class representatives’ records were
produced.

        We are unable to perceive from the record or the briefs
what additional information might be required to establish that
there is no conflict of interest between the named individual
plaintiffs and the other members of the putative class. However,
the District Court did not rule on the other Rule 23(a) factors,
numerosity, commonality, and typicality. Accordingly, we will
vacate the District Court’s order denying the motion for class
certification.

                        III. Conclusion

       Neither the record nor the legislative history of 53 PA.
CONS. STAT. ANN. § 10621 contain any evidence that would
preserve the statute against the guarantees provided by the ADA


     14
       The City argues that there is doubt about whether the
named plaintiffs can adequately represent the class because their
claims for damages “predominate” over their request for
injunctive relief. See Allison v. Citgo Petroleum Corp., 151
F.3d 402, 413 (5th Cir. 1998). However, the individual
plaintiffs seek damages only for themselves, and therefore they
do not implicate possible future claims for damages by other
members of the class. Accordingly, the City’s argument on this
point lacks merit.
                                51
and the Rehabilitation Act. We will reverse the judgment of the
District Court denying summary judgment for NDTS with
respect to the claim that 53 PA. CONS. STAT. ANN. § 10621
facially violates these federal statutes and remand for further
proceedings consistent with this opinion.




                              52
