The federal judge in the lawsuit against West Chester Twp. and its drug rehabilitation center moratorium essentially told the township it likely won’t win if it continues to fight the case.
In an unusual move, Judge Timothy S. Black of the U.S. District Court, Southern District of Ohio, placed a notation on the docket that basically tells the township it needs to work out a resolution with Dr. Mohamed Aziz.
Aziz sued the township on Sept. 23, alleging that a temporary ban trustees placed on facilities like his Professional Psychiatric Services (PPS) violates the Americans With Disabilities Act.
Black wrote: “The court has held two initial telephone conferences involving counsel for plaintiffs and for defendant. During these conferences, the court reminded both parties of the consequences that could result if the court finds that the Americans with Disabilities Act and/or the Rehabilitation Act have been violated by defendant, or not.”
Black has reviewed the complaint and the motion for temporary restraining order and preliminary injunction, and “while acknowledging that these documents reflect only the position of plaintiffs and not the defenses that could be raised by defendant, the court has advised defendant that it would be wise to work with plaintiffs to find a potential resolution to this matter outside of the litigation process,” the judge wrote.
Trustee George Lang said the township has no choice but to work on a settlement with the doctor.
“The judge has ordered us to enter into conversations with Dr. Aziz, to see if we can come up some satisfactory settlement terms,” Lang said. “So right now we are focused on are there any conditions that we can apply that would mitigate the negative impact that Dr. Aziz’s business might have on surrounding neighbors?”
The lawsuit indicates PPS paid $650,000 for the old nursing home and an additional $200,000 for an adjacent property to properly address a “storm water retaining bowl” issue.
Residents have been at every meeting since April 12 protesting the controversial center because it sits across the street from the Pisgah Youth Organization ball fields, next to a daycare center and in front of a residential neighborhood.
“PPS’s future patients are considered people with disabilities under the ADA and the Rehab Act and are therefore a protected class,” the lawsuit reads. “Under the ADA and the Act, laws that apply only to individuals with disabilities are facially discriminatory.”
Greg Ernst, president of the PYO, called it a “sad” day and said he fears the day a heroin addict might stumble across the street and overdose in their parking lot. He said he also doesn’t understand why Aziz didn’t pick a spot close to the numerous hospitals in the area in case of emergencies.
“There’s probably 1,200 people who have voiced their concern,” Ernst said. “Last time I checked being part of democracy, you know 1,200 people should have a say on what happens in their community and one person shouldn’t overrule that. One judge shouldn’t overrule that.”
Aziz’s attorney Chris Finney said while it is not unheard of for judges to take this pre-emptive action, it is unusual and was a very “deliberate” thing for Black to do.
“In some ways it’s a kindness to the defendant to be clear how you feel about something rather than blindside them later on,” Finney said.
Attorney Konrad Kircher said he doesn’t believe the judge is actually saying the township is going to lose, but he is sending out a strong message.
“He is certainly making sure West Chester understands the severity of the allegations and the risks of going forward,” he said. “Yes, that type of entry is unusual. If West Chester rolls the dice, and loses, Judge Black doesn’t want to hear them say they should get off easy.”
Finney said this case could get very expensive if it lingers long. He said the majority of cases like this settle rather than go to trial.
“It’s more efficient for everybody if things can settle early,” he said. “This is fee shifting litigation, which means that when we win, if we win, the township has to pay the plaintiff’s attorney fees and its damages litigation, so they have to pay him the cost of depriving him of that property since April, when they put that moratorium in place. So it’s going to get pretty expensive for the township to let this play out.”
The township’s law director Scott Phillips said he cannot discuss pending litigation.