California At A Crossroads On Sober Living Homes

Is 25 years of federal protection for sober living giving way to regulation by state and local government? Is voluntary certification or licensing for sober living the answer? Will California join other states that have gone down the path of licensing sober living?

Over the past quarter century, the United States has recognized the right of “sober living” homes to operate without state or local oversight. These facilities offer drug- and alcohol-free cooperative living arrangements for people in the process of recovery from addiction. Explosive growth and attention to problems in sober living have led many states and local communities to rethink the status of sober living and explore ways to regulate. California is on the brink of being the latest state to pass legislation aimed at regulating sober living.

Despite their unpopularity with neighbors, sober living homes enjoyed legal protection from local oversight thanks to U.S. Supreme Court and other judicial decisions upholding federal laws, including the Fair Housing Act and Americans with Disabilities Act.

In the eyes of many, however, the pendulum has swung too far in the direction of protecting sober living homes from regulatory oversight. The unrestrained growth in sober living homes over the past five years has inflamed simmering tensions in many communities in California and the nation, leading to increased outcry from neighbors and neighborhoods.

Cities, for example, complain that the proliferation of sober living in recent years has become unmanageable and that overconcentration in some areas is impacting the quality of life for everyone else. The refrain is that unregulated sober livings make for bad neighbors: They are noisy, full of smokers, and take up valuable parking spaces. Criticism that the worst sober livings not only fail to prevent, but actually encourage relapse and drug use, are also becoming more prevalent.

Regulators also express concerns regarding resident overdoses and deaths in connection with poorly run sober livings. The California Consortium of Addiction Programs (CCAPP) have suggested that one way to regulate these bad actors would be mandating all outpatient treatment facilities be required to be certified by the state Department of Health Care Services. At this point certification of these facilities are optional.

Given the convergence of these complaints, it’s little wonder that states and local communities have begun to pressure policymakers to regulate sober living homes, inspiring greater creativity to do so without running afoul of federal laws protecting rights to operate. Last year, Florida and Massachusetts both established voluntary certification processes for recovery residences. California is poised to join them through a pending bill, AB 2255, which would create optional certification standards for “drug and alcohol free residences.”

If AB 2255 is passed by the legislature and signed into law, DHCS would oversee home certification by authorizing approved certifying organizations to use established application processes, certification standards, inspections, and a disciplinary processes for investigations and enforcement actions. AB 2255 would also require DHCS to maintain an online registry of sober living certification status and disciplinary record.

But for many cities on the front lines of sober living expansion, AB 2255 and similar laws don’t go far enough. AB 2255 specifically provides that voluntarily certified sober livings are a residential use, meaning that cities and counties cannot regulate them differently than single family homes. Moreover, AB 2255 is a discretionary certification that sober living operators can elect to ignore. Representatives for cities and property owners are advocating for more aggressive local mechanisms to crack down on sober living abuses.

Ultimately, we are likely to see a rash of litigation to challenge local regulation that seeks to create an explicit, classification-based housing standard for people in recovery from addiction.

Judicial decisions striking down aggressive local laws will follow because they treat people in recovery differently, without a rational basis, and have a disparate effect on the housing choices of people with disabilities. The unfortunate expenditures of time and money necessary to defeat these approaches means that at least in the short-term, sober living operators should buckle in for a bumpy few years.

Harry Nelson is the managing partner of the law firm Nelson Hardiman, a Los Angeles law firm that works closely with behavioral care providers.