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Judge rejects Hernando County's bid to dismiss Operation PAR's lawsuit over clinic

SPRING HILL — A federal judge has rejected Hernando County's first attempt to quash Operation PAR's legal fight to open a drug treatment clinic in Spring Hill.

U.S. District Judge James Whittmore, in a Feb. 6 order, denied the county's motion to dismiss a lawsuit filed by the nonprofit corporation, putting the case on a path toward a jury trial.

Operation PAR filed the suit after the Hernando County Commission voted in August to deny a special exception permit request. The permit would have allowed the company to open a methadone treatment clinic in an existing, stand-alone building on Kass Circle.

The company argued that, because drug addicts are considered disabled, the commission's denial violated the Americans with Disabilities Act and the Rehabilitation Act. The petition asks the court to require the county to issue the special exception permit; it also seeks unspecified damages and reimbursement of legal fees and expenses.

In the county's motion to dismiss, Orlando attorney Joseph Flood argued that corporations lack standing to sue for lost profits under the ADA and that Operation PAR failed to make a persuasive legal argument that the county had violated equal protection laws by subjecting the zoning request to a higher level of scrutiny.

But Operation PAR is suing for expenses, not profits, Whittmore noted. Entities can sue on behalf of clients and in their own right for damages, as Operation PAR has done, the judge wrote.

As for the equal protection claim, "(T)his is a matter which is best addressed on a complete record, not the bare pleadings," Whittmore wrote.

That means the case could wind up before a jury. Both sides have agreed to be ready for trial by April 2013, according to a case management report prepared last week.

Before that, though, both sides will likely file motions for summary judgment once the discovery phase is complete, said Flood, who works for the Orlando firm of Dean, Ringers, Morgan and Lawton.

Summary judgments ask judges to issue a ruling based on the material facts of the case, preempting a trial.

"It's certainly the county's position that its action was never intended to affect the rights of the disabled or to treat Operation PAR any differently than any other applicant," Flood said. "The county simply applied its neutral zoning code and made a ruling that at least one judge has upheld."

Operation PAR is also hopeful a judge will rule in its favor before a jury gets involved, said the company's attorney, Darryl R. Richards of the Tampa firm Johnson, Pope, Bokor, Ruppel & Burns.

"We're certainly going to look at that avenue and attempt to get that decision before a year from now," Richards said.

The planning board in July voted 4-1 to approve the special exception permit, finding that the treatment clinic was compatible with the area. Special exceptions do not require County Commission approval, but the commission can opt to review the zoning board's decision.

Commissioners decided to do that after nearby residents and business owners complained, voting unanimously to reverse the planning board's decision.

Last month, 5th Circuit Judge Lisa Herndon denied Operation PAR's petition asking the court to order the commission to give the company another zoning hearing. Herndon ruled that there was substantial, competent evidence supporting the commission's vote.

The company wants another circuit judge to consider that petition, citing in part a local administrative order by Chief Judge Daniel Merritt Sr. requiring Hernando County judges to transfer cases involving county government to a judge outside of the county. Merritt issued the rule amid the debate about whether the county needed more courtroom space.

Both parties have agreed to put the local proceedings on hold pending the outcome of the federal case.

The Spring Hill clinic would be the first of its kind in Hernando, and Operation PAR's fifth, to offer a Medication Assisted Patient Services program. The program uses methadone to wean addicts from opiates such as pain pills, heroin and OxyContin.

The company also has a financial stake in the case. Its purchase of the 1-acre commercially zoned property was contingent upon the county zoning board's approval, and so the $335,000 deal was finalized in July.

Tony Marrero can be reached at (352) 848-1431 or tmarrero@tampabay.com.

Judge rejects Hernando County's bid to dismiss Operation PAR's lawsuit over clinic 02/15/12 [Last modified: Wednesday, February 15, 2012 6:06pm]
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