OTP Victory in Berwyn Hoped to Discourage Other Localities From Discriminating

The city of Berwyn, Illinois will never pick a fight with an opioid treatment program (OTP) again. In July, it settled with Elizabeth Buonauro and Sal Sottile, current owners of an OTP in Evanston, Illinois that will now be allowed to open a second clinic in Berwyn, for $650,000. The saga is one of discrimination against methadone patients, of the illegality of that discrimination, and of the foolhardiness of localities in persisting in that discrimination to the point of fiscal irresponsibility. At the root of that foolhardiness is the craven fear of politicians that they will lose their jobs if they don’t do what voters want—even if they know the voters are wrong.

The Berwyn City Council first voted in 2008 to allow the clinic to open in a medical building, but NIMBY (Not In My Back Yard) -ism soon crept in, with residents opposing it. The City Council reversed their decision. In November of 2008, the clinic’s owners sued the city.

The Americans with Disabilities Act (ADA) is a powerful ally of OTPs. When authorities so obviously target people in treatment for drug addiction—a specifically protected class under the federal law—they really have no defense, and if they are taken to court, they inevitably lose. This was seen last year in Warren, Maine, when CRC Health Group won its battle for an OTP there, and the town’s insurance company had to pay $320,000.

“The court’s decision that the City of Berwyn violated federal anti-discrimination laws is the latest of a string of federal court decisions holding that zoning out methadone programs violates federal law,” said Sally Friedman, legal director of the Legal Action Center. “What’s striking about this case is the substantial $650,000 settlement.  This large sum of money should awaken other municipalities to the fact that that discrimination is costly, as well as illegal.”

Between its first vote and the second, Berwyn Council members were pressured by residents to keep the OTP from opening. Knowing that a lawsuit was possible, and that the city had no legal grounds to stand on, the Berwyn Council members nevertheless gave in to residents, who said that the OTP would lower their property values and bring crime into the neighborhood. In April of 2011, the city denied the clinic a business license, even though it had passed all zoning requirements.

The Ruling

The ruling by Judge Sharon Johnson Coleman of U.S. District Court on May 11 held that Berwyn violated the ADA when it passed an ordinance banning OTPs. The ordinance was illegal, because of “the city’s ongoing discriminatory intent in the zoning decisions,” Judge Coleman noted.

“Federal courts have consistently held that a municipality violates the [ADA] by subjecting a substance abuse clinic to differential zoning treatment because of its association with individuals recovering from an addiction. There is ample evidence that Berwyn’s zoning decisions regarding the plaintiffs’ clinic were motivated by an intent to treat its clients differently from other medical patients.”

Key to the case was a video tape in 2008 in which city aldermen clearly perceived that they might lose their seats if they voted for the clinic. “The reactions of (Fourth Ward Alderman) Michele Skryd, (then-Seventh Ward Alderman and now Mayor) Robert Lovero, and (First Ward Alderman) Nona Chapman to the community’s hostility towards the clinic in 2008 are evidence of a perceived voter animus so strong that it could only be ignored at the council’s political peril in later years,” Judge Coleman wrote.

The judge ordered that Berwyn pay the OTP’s legal fees, issue a business license, and not block the clinic with any zoning changes.

But as of September 4 Ms. Buonauro still did not have a business license – Berwyn was stalling, even though the judge said to “immediately” grant the license, she said. “I pay the lease but I don’t have a key, I don’t want the liability,” she said. “I’m not going to do a buildout and have Berwyn do something else to me.”

It was a long 4 ½ years, and now there is a victory, but the battle isn’t over for Ms. Buonauro. “They talk about NIMBY,” she told AT Forum. “This is my back yard. I live within 2 blocks.” However, she proudly describes the facility is perfect,–the second story of a bank building, with a rear entrance for privacy for patients, and other medical offices in the building.

Judge Coleman also said that ordinances and zoning rules designed to keep OTPs out of municipalities are illegal, a ruling that will hold for much of Illinois. (The ruling, while in federal court, applies only in the district that it covered.) “A zoning provision that discriminates against methadone clinics violates the ADA even if it merely provides a location restriction rather than an outright ban, and even if the provisions offer a process for relief from that restriction,” the ruling stated.

The decision to settle the lawsuit was made in a 4-3 vote.

Now that there is no chance of a legal appeal by Berwyn, they are finally ready to open their new facility.  It was unclear at press time how many patients the facility would have or when it would open. “Another program might have given up in the face of the opposition,” said Richard Weisskopf, State Opioid Treatment Authority for Illinois, in an e-mail to AT Forum. “Not Ms. Buonauro!” But it was abundantly clear that where other programs might have given up in the face of the opposition, Liz Buonauro would not. And this perseverance paid off, for herself and her patients.