he right is it the boy i think it's devoid yeah we don't speak any friendship it does get substantive from he that this case presents another instance of a city using discriminatory zoning against a methadone treatment center to keep it out for the let's back into the issues you have a nice statement we're not a jury and there couple  es here the only arguing standing and the medication correct how many understand why this should be regarded as kind of standing case i understand that everyone would agree that drug addiction is disability were you putting that in the hat because just put the disability in your answer i'm asking you why does the impairment rise to the level of a disability under the ari and the a d f because the city of dubois regarded perceived  j s patients as being substantially limited and the major life activity of caring for oneself city did yes what is the evidence in the record of that following up on chief judge the key question they must regard the individuals who are patrons of or patients at the treatment center a having a condition that constitutes a disability under the statute right correct so that what the perceivers are regarding is not simply a bad thing we don't want to treatment center and would they have to be regarding the people using the treatment center as having a condition that constitutes a disability under the statute is different but exactly  what's in the record at the public hearing on our show his application for a certificate of use speakers assume that our patients would go bad at their facility that they would overdose on heroin at the suicidal if they had severe problems that needed constant and daily medical attendance are those are certainly indications of some kind of symptomatology or various symptoms but how is that improvement and impairment that meets the definition of a dis the second circuit in regional economic and this court affirmed in us v autobahn that the inability to live independently without states patients could not live independently without relaxing of drugs they needed r h is there any statement they could not live is there any statement from which we could draw an inference that that was the view conversely evidence well i think two things one is that they the district court ignored evidence because it failed to impute the comments about overdosing the comments about relapse and drugs from speakers at the public hearing to the city one of the residents concerns and their findings of fact and conclusions of law denying our chaise application for a certificate of use and you know i'll take my word for it the district court expressly found that at a zero zero two seven in the record the district court says the city solicitor review the public hearing statement and incorporate all the resident statements into the findings of fact and conclusions of law the district court found that all of those concerns expressed were illegitimate completely illegitimate every one of them that r h j's status as a methadone clinic led the city to impose these requirements based on their belief about our age days patients  people in a rehabilitation clinic that suffer from a drug addict or drug addiction are presumptively qualified under the a d a s and are and the parties do not dispute that in the case i think the idea behind that quote i don't want to put words in judge smith's mouth but the idea behind that quote is that when you suffer from a drug addiction and when you are in a rehabilitation clinic under those circumstances a drug addiction is essentially a disability per se you're always going to be substantially limited in a major life case is what does the community to the extent those views may be imputed to the defendant in this pilot here demonstrate with respect to the nature of the room and whether or not it constitutes one of the impairments under the statu and whether it substantially impairs their billing exactly your honor and you believe the record demonstrates that the district court believed the record did not th here with respect to the regarded as in i think you can look at it from three different perspectives first as a matter of interpretation the district court concluded that the type of prejudice that our age days suffered was not the type of prejudice that was designed to be covered by the regarded as prong second you can look at it from an application stand what we've seen and if we look at it that we know you can look at it from an application i obviously the determinations by the court that the mayor said we don't like those things on a radio show is a finding of simple finding of fact that one's easy right right as are the determinations that such and such said x y and z at a public hearing but what happens when we get to taking those statements on their face and trying to match them up with the statutory a clear legal term i think when the facts are undisputed it's a clear legal determination it's the application of our differences of making sure that it's not just if the court makes a finding of fact with respect to the mayor said x it's a fact if he makes a determination that the mayor said why but the other side said he said x it's still a clear factual determine correct so i'm not sure what you mean by whether or not it's contest and it comes down to the use that we as a court decide to make of those put to kill or set of facts right correct i think in either scenario it's a never a viewer times almost moved to the of constitutional deprivation in the judge required you to do to mitigate your damages to do exactly that which the ordinance that was struck down you were challenging asked you to do exactly and our position is this principle was expressed by the court and easer express the plaintiff is not required to give in to the unlawful demands of the defendant in order to mitigate their damages in this case the district court understand your argument because it doesn't sound like garden variety mitigation principles it's not garden variety i think this is a very unusual situation you're claiming that because it's a constitutional violation ordinary mitigation principles  apply no i'm claiming that i mean what's what's the authority i'm claiming that ordinary mitigation principles for discriminatory plaintiff apply and easier expressed said you do not have to give in to be unlawful demands ok i'm curious because i admittedly am not sure what the basic principles of mitigation are here that this court should apply i read the district c that if there is one for lack of a better term opportunity that your client failed to avail themselves that's sufficient for purposes of concluding that they failed  and i don't know whether that's the rule or or or alternatively whether it's a simple rule reasonable that applies in terms of the steps that your client was required to  contract but they're the kinds of arrangements where money is the heart of it and if you're injured the thing which you at a loss for is dollars and therefore makes some sense to look at a contract sooner or to discriminatory the victim of discrimination could have taken that what i was suggesting was that the whole concept the mitigation doesn't work here you're saying it works but they did to court misapplied the doctrine that properly applied to the space that was vailable to not constitute a reasonable and appropriate facility for your client well two reasons first just because it may have was amenable to your client's use may constitute could constitute that one mitigation efforts that your client failed to pursue if that were the rule and that's all i'm asking factually what you hear and why wasn't because it was near residences and are as sure as a methadone clinic does not want to locate near residences because of its early hours of operation and the district court expressly found in its findings that that was one of our at chez specifications ultimately for sale both of those are additional specifications that the district or express they found at that specific property did not meet about what was the applicable standard of review here relative to the regarded as you are with regard to be regarded as inquiry your honor i think especially in a case like this with a complete absence of evidence i think we have  clear error of law is what we have to look for and in this case there was no clear of law there was in fact no evidence presented with two so i think you're mixing is it clear which is factual in nature or is it an error of law which would provide us with its doors in violation of section six twenty one when section six twenty one was the law without ever speaking to anyone at the city of two boys it opened and began doing business as a methadone clinic without the actually although they stipulated to your honor they did sign a stipulation in the state court or an injunction proceedings at the trial level orage did not identify a single individual who would person who is in fact either addicted to drugs or under methadone treatment because that's the same thing it right here and looking at the the hunt case the supreme court case from  seventy seven at four thirty two us three thirty three this was the case cited by the addiction specialist court in order to for an association to have standing to bring suit on behalf of its members it must  three criteria one is that its members would otherwise have standing to sue in their own right are you talking about generalized article three case and controversy standing as opposed to a statute which includes within it the ability to  seek relief if you are disadvantaged because of the association with a protected group under that statute that that's different than i recall three standing it if it is your are but relevant nevertheless because in this case under the idea and already we do have the carve out for drug use so in other words individuals are not entitled to the protections of the a t a i are a in their own directing you not that which makes which gives you the impermanent which is subject to the statute is no longer preventing you from having a major life function because you're undergoing treatment for it and that's exactly the kind of protection it seems to me that you are a and e heir intended to extend i agree with the position that that is and that those are the protections that the ira in the a b a are intended to protect against however or that even assuming impairment the regarded as equation requires that the impairment that is viewed denizens of the community and therefore you did to the community it still is one that substantially limits a major life activity isn't that your strongest argument that what can be said here is these folks may have seen that impairment they may have regarded and impairment is existing but what they did not do was regarded regard an impairment a major lie so given what what did the plaintiff here show what does the record demonstrate in the way of evidence that the district court may have  to what the plaintiff would have needed needed to have shown in order to open the door to show a that any that or each day was associated with any individuals who were substantially limited in a major life facilities such as orange jake can bring suit on behalf of its individual clientele but it still needs to be to burton he still has to show that association with individuals who are regarded as directions we're talking specifically about identified individuals there were individuals who sued as well in that case who were plaintiffs shoulder to shoulder with new direction it would have been language i was never developed on the record to trial it was they would have to show an association with individuals who would have we can't say as a matter of law that everyone every opioid addict anyone who's ever been an opioid addict is as a matter of law disabled and regard and not and and regarded as being substantially limited in a major likely because this is peel has gone forward solely as a regarded as argument  with severe opiate addictions having suffered from such for more than a year in the morgue and stirred isn't isn't the answer to that question in this into your best argument not that they're in the community or the community itself did not regard the person that way that's correct your honor i'm not trying to argue your case for you but i am trying to focus the argument which i was quite honestly not sure what question you were asked answering ok in order to reach the starting line i'm saying they would have had to have raised some testimony by individuals by experts some testimony to meet the burden to stablish eligibility under the one way would have been to show specific people another would have been to present expert testimony on the issue here we cannot say as a matter of law that anyone who has ever been an opioid addict is substantially limited in a major that is irrelevant incorrect because they would only have to show one however the recorder this is a regarded as case and so really what we're looking for in the record is a shred of evidence that shows that the city of dubois regarded any individual patient or client of our h j as having been disabled i heard mr months or say that there was a fear a generalized fear that someone associated with or h j might behave in a certain way at some point in the future that's not the same as regarding someone as being there you know the pleasure of the material up was considerable animist out there in the community as demonstrated on the record in this case over a cup of coffee or gas when you know that's not your ordinary for you know we all know why they want it when they click in not because they didn't come a calling nicely but because these folks were represented quote garbage school that's why they want the clinic that record and if you understand the background is that the big issue discussed earlier in that radio interview and in prior radio interviewer interviews was whether the city of dubois had to accept shipments of trash garbage from the philadelphia area to the landfills in and around dubois and it was the last nimby cases did you know it did did you ever make it a point in the brief because i certainly came here with the understanding that garbage would be used as i believe it's not the first thing that i was i ever had i was lazy in local radio and believe me if you learn one thing it's not pay much attention to what a destructive or a local radio interviewer says over the line  fine job you know we don't know enough about it you know we hear it and we read things about these methadone clinics and other areas and we don't like them you know what i mean and so you know that's they're speaking the host and says they definitely just the mention of it makes my hair stand on the back of my neck and he's not talking about recycling lafontaine was he he then was on the say the problem here is that i think that there's a lot of i don't know much about the situation i'm not really clear i understand why it is the place where people can go that they're trying to get off of very hard drugs i understand that we live in a society were unfortunately there was a need for such things you know and this kind of goes with the same argument and we've got to we've been having with the landfill people you know i with this the host says the issue here is do we as people have to accept philadelphia's garbage do and i don't know of any program who was shipping recycled for the inquiries but who knows you know it all ends up in  pulled out of the p d f if you want to i can go to the entire appendix i don't think women find anything out of in there which is going to negate the association of landfills for garbage in methadone clinics for keeping i'd say that dog won't hunt mr morrison on the  t i would also say let's not lose sight of one thing the point if did win here they did win some which to which says to me a heck of a lot they just didn't win the whole shooting match and they didn't get a pain all the damage is that is a burden of mitigation along with the injury is a constitutional deprivation as opposed to money damages arising from a contractual situation nathan eighty three you might find it i can i've understood it has always been an affirmative defense what were the measure of damages being sought here by the places where the measure of damages included loss profits and any number of so it really is in the nature of the another category of damages that's basically what they were awarded they were together they were to have a judgment in the amount of the expense is what we have in this case so keeping in mind that the city of dubois is very small toy you know three and a half square miles or so and they had you that and the the city had been in the process of developing a sewing plan where they were developing a medical campus with a devoiced regional medical center where they're moving medical facilities down to the to the hospital campus area where there was in excess of ninety thousand square feet of space opened for lease and so the this is the evidence that count it is hard to mitigation go so they made no effort to locate among the other medical providers when the hospital's president testified that he would have  j to the medical campus and the witness for r h j did testify that she thought that the area down among the medical campus would have been ideal and perfect for  five thousand square feet that was not available for sale and if we leave within that camp there there were spaces again totaling something in excess of ninety thousand both the east and west campuses  just to address that last comment about the ninety thousand square feet the former d r mc president testified that the anti or hospital was not eight thousand square feet it was general testimony not a specific property judgments concerned about to be regarded as prong and whether they believed that we were substantially limited to major life activity i think the evidence supports that conclusion but you can see that is your bird having having chosen to you don't have your own fire department you don't have your own physician on staff to handle overdoses or a position on staff to handle at the local hospital overdoses specifically saying overdoses the mayor defended the law by saying that i substantially limited if you cannot live independently without overdosing the perceptions of the city match that statement they believe that we cannot live independently without a physician without our own that if it does require an inference the district court wasn't focused on the correct evidence because he disregarded all of us i don't think it does require an inference because they are saying directly you are going to suffer overdoses that directly equates with the major life activity of caring for you want caring for oneself you don't need any inference there and i think that's where the force circuits case and a helping hand is instructive i see that my time is running out o helping hand stands for the proposition that when the discriminatory comments do not directly equate with the major life activity you cannot determine the regarded as prong as a matter of law there's got to be a perverse permissible inference there the jury  that because the county viewed the methadone clinics in that case as criminals and undesirable neighbors they also thought they were unable to work but you can't decide that as a matter of law and here the comments of the city are directly equated with