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have been successfully invoked to strike down arbitrary and discriminatory provisions targeting SUD treatment and rehabilitative services. III. Legal Principles Applied in the Line of ADA Substance Use Treatment Cases Is Applicable to Syringe Exchange Programs In light of the legal framework presented above, the proposed Santa Ana SEP ordinance 15 is vulnerable to challenge as facially discriminatory in violation of (1) Title II of the ADA and (2) 16 Section 504 of the RA. Facial challenges may be brought when “a single party asserts that a law is invalid not only as applied to them, but as applied to all parties that might come before the 17 court.” As stated above, in bringing forth a facial challenge under Title II of the ADA, the plaintiff must establish that (1) qualified individuals with a disability (2) have been subjected to discrimination by a public entity (3) by reason of their disability. If a plaintiff can establish that the ordinance violates the ADA or RA, the municipality, at minimum, may be enjoined from enforcing the wrongful ordinance and, if shown to be intentionally discriminatory, may be held 18 liable for monetary damages including attorneys’ fees. The proposed Santa Ana SEP ordinance constitutes an effort to exclude SEPs from properly operating in Santa Ana and intentionally discriminates against persons with SUD—a disability covered under the ADA. To be clear, the proposed ordinance bans SEPs within Santa Ana entirely. This ban is a denial of health services to persons with SUD in contravention of the ADA and RA, and will likely fail judicial scrutiny as courts have repeatedly stuck down closely analogous provisions in the past. IV. The Statutory Carve-out Exempting Individuals Who Currently Use Illegal Substances Does Not Apply Courts have recognized that persons with SUD are “disabled” within the meaning of the 19 ADA. In fact, the Department of Health and Human Services specifically provides that “drug addiction, including an addiction to opioids, is a disability under Section 504 of the Rehabilitation Act \[and\] the Americans with Disabilities Act…when the drug addiction substantially limits a 15 “Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. 16 No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794. 17 New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 308 n.11 (3d Cir. 2007). 18 This is because the only way to alter a facially discriminatory ordinance is to remove the discriminating language, which would render the ordinance a nullity. Additionally, it is worth noting that a facial challenge precludes the government from asserting a reasonable accommodation defense. See Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 735 (9th Cir. 1999) (concluding that the reasonable modifications test does not apply to facially discriminatory laws and that facially discriminatory laws present per se violations of § 12132); MX Group v. City of Covington, 293 F.3d 326, 334 (6th Cir. 2002) (holding that plaintiff not required to request reasonable accommodation because the blanket prohibition of all methadone clinics from the entire city was discriminatory on its face). 19 MX Grp., Inc. v. City of Covington, 106 F. Supp. 2d 914, 918 (E.D. Ky. 2000), aff'd, 293 F.3d 326 (6th Cir. 2002) (finding that recovering heroin addicts are “persons with a disability” within the meaning of the ADA).