Opposition Brief — City of Middletown v. Regional Economic Community Action Program, Inc.

No. 01-1624

JUN 5 2002

—_ |_OmFICEOF THECLERE. |

Supreme Court of the Anited States

¢

CITY OF MIDDLETOWN, CITY OF MIDDLETOWN

PLANNING BOARD, and JOSEPH DESTEFANO,

Petitioners,

v.

REGIONAL ECONOMIC COMMUNITY ACTION

PROGRAM, INC., and UNITED STATES OF AMERICA,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

°

BRIEF IN OPPOSITION

2

SIMEON GOLDMAN, Esq. SHELDON H. ELSEN

DISABILITY ADVOCATES, INC. Counsel of Record

5 Clinton Square, LESLIE A. LUPERT

3rd Floor JOHN J. MONTONE

Albany, New York 12207 ORANS, ELSEN & LUPERT LLP

(518) 432-7861 One Rockefeller Plaza

New York, New York 10020

(212) 586-2211

Attorneys for Respondent Regional Economic

Community Action Program, Inc.

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Should this Court grant certiorari to review a

unanimous holding of the Second Circuit that the recover-

ing alcoholics who would have resided in RECAP’s planned

halfway houses were disabled under the Fair Housing Act,

the Americans with Disabilities Act, and the Rehabilita-

tion Act, when New York State regulations specifically

limited admission only to individuals who were diagnosed

with alcoholism and whose condition remained so severe

that they were unable to live independently without

relapsing?

2. Should this Court review the Second Circuit's

unanimous holding that there is a question of fact for trial

as to whether the City of Middletown’s proffered reasons

for denying RECAP’s application for a special use permit

to operate halfway houses for the disabled were pretex-

tual, when the record is replete with evidence of

discriminatory intent?

3. “Should this Court review the Second Circuit's

unanimous holding that there is a question of fact for trial

as to whether the City of Middletown’s decision to revoke a

prior commitment to fund another RECAP project was

intended as retaliation against RECAP for pursuing, inter

alia, the claims raised by this lawsuit, when the record

contains ample evidence of retaliatory intent, including

comments by the Citys assistant corporation counsel

virtually admitting that the City was retaliating?

ii

STATEMENT PURSUANT TO RULE 29.6

Respondent, Regional Economic Community Action

Program, Inc. (“RECAP”) hereby states that it has no

parent corporation and no publicly held company owns ten

percent or more of its stock.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..............ccccccsccsssssssssseeees i

STATEMENT PURSUANT TO RULE 29.6............... ii

TABLE OF CONTENTS ........sssssessessssssssesssssseesscsesees iii

TABLE OF CITED AUTHORITIES .....................0000 Vv

I ace 1

STATUTES AND REGULATIONS INVOLVED ........ 1

STATEMENT OF THE CASE..............ccccsccsssssssssseees 1

REE ERENT CS Oe aeRO 2

B. The City’s Retaliation Against RECAP........... 13

le BE UUIIUNE BENNIE ocseciccsscncnsccscccnsccccesccsnsccsnse 14

REASONS FOR DENYING THE WRIT.................... 16

POINTI: THE SECOND CIRCUIT COR-

RECTLY APPLIED THIS COURT'S

PRECEDENTS IN HOLDING AS A

MATTER OF LAW THAT THE

PROSPECTIVE RESIDENTS OF

RECAP’S PROPOSED HALFWAY

HOUSES WERE DISABLED........... 16

A. The New York State Regula-

UN ilscuicbbiuiinniictienbainabdatabedibabnins 17

B. The Prospective Halfway House

Residents Were Disabled as a

BIO OE Eo vnccncecssecoccsccesceseces 18

POINT II: THIS COURT SHOULD NOT RE-

VIEW THE SECOND CIRCUIT'S

HOLDING THAT THERE IS A

QUESTION OF FACT FOR TRIAL

REGARDING PRETEXT.................. 24

iv

TABLE OF CONTENTS -— Continued

Page

POINT III: THIS COURT SHOULD NOT

REVIEW THE SECOND CIRCUIT'S

HOLDING THAT THERE IS A

QUESTION OF FACT FOR TRIAL

REGARDING RECAPS RETALIA-

ET SNE sccnennsscsncnnneneicnnssbadannenen 28

CIEE cicsennciinnnntimnniscuinanindinnnnsianedieninanhsiiion 29

v

TABLE OF CITED AUTHORITIES

Page

CASES

Bragdon v. Abbot, 524 U.S. 624, 118 S.Ct. 2196

(FET ccstiteisnnveenivnntininninstssishtedghainnnienniiaduitininiaibaiiemia ta Teed iasiins 19

Guice-Mills v. Derwinski, 967 F.2d 794 (2d Cir.

SIINUED cniscihsessntcsinnenniniincianiasieichiitplsahisibionia darmiamaascdnaial atl atae Siac: 20

PACER INC. v. Planning Bd. of Middletown, 635

N.Y.S.2d 704 (App. Div. 3d Dep’t 1995) ..............cceeceeeee 13

Sutton v. United Air Lines, Inc., 527 U.S. 471, 119

SD. SR, Se CR tesnnicmincheananiinsiniepaindlnlees aie 21, 22

Toyota Motor Mfg. Kentucky, Inc. v. Williams, 534

U.S. 184, 122 S. Ct. 681 (2002)............... 17, 19, 20, 23, 24

STATUTES, REGULATIONS AND RULES

BD CFTR AG. S FI Oi wivinditcthcincnes cee ie i, 19

SP ALS. FT sssenssisianenicnbaaaiabieninnnnactaidensiaaddiosiaee 18

BR I, Fe 0 OO siiscaicinissscesntba itinerant 1

ME SF Tits BI ceicsidtibinsieinibiniiteei lta este 18

ER. BR OE wes vnisescisntisindcteagacnts 1,19

RE ease Re tei apitbiiebsiinitdhiathiiia ei ania 18

BO CP. § OIE rsicnsesunncrsnisicinsnisisinshginnsiusisanieaansatadssiiile 19

Be CF ae 8 Se hain Ieinksdahiasidinailiaai 19

28 C.F.R. Pt. 1680 App., § 1630. 201k) ........00cscccccsceesscseseoesss 24

GAG ie PG eabiniisissncieiiahilaiaisiliiaiinianiillag eis 19

N.Y. Comp. Codes R. & Regs. tit. 14, § 375.1.......... 1, 17, 23

N.Y. Comp. Codes R. & Regs. tit. 14, § 375.8 ............ passim

EAT TOE TS 2, 24

1

OPINIONS BELOW

The recitation of the opinions below contained in the

Petition for a Writ of Certiorari is correct, except that the

Second Circuit’s final opinion in this case, __ F.3d __.,

2002 WL 449493, will be published.

+

STATUTES AND REGULATIONS INVOLVED

In addition to the provisions of the Fair Housing Act

(“FHA”), 42 U.S.C. § 3601 et seg., the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seg., and the

Rehabilitation Act, 29 U.S.C. § 701 et seg., which are set

out in Appendices C, D and E to the Petition for a Writ of

Certiorari, the following regulatory provisions are relevant

to this matter: N.Y. Comp. Codes R. & Regs. tit. 14,

§§ 375.1 and 375.8. The text of these regulations are

annexed hereto as Appendices A and B, respectively.

+

STATEMENT OF THE CASE

The Petition for a Writ of Certiorari (“Petition”) asks

this Court to review a unanimous decision of the Second

Circuit which the petitioners did not challenge by petition

for rehearing or a petition for rehearing en banc before the

circuit court. The Second Circuit’s decision, annexed to the

Petition as Appendix B, held that the recovering alcoholics

who would have occupied two halfway houses which the

respondent, RECAP, planned to construct in Middletown

in 1994, were disabled as a matter of law under the FHA,

the ADA and the Rehabilitation Act, because admission

would be limited by New York State regulations to persons

who were unable to live independently and to care for

2

themselves without jeopardizing their recovery. The

unanimous decision further held that there is ample

evidence in the record to warrant a trial on two fact-based

questions: (1) whether the City of Middletown’s proffered

reasons for denying a special use permit to operate the

halfway houses were pretextual, and (2) whether the City’s

subsequent withdrawal of a prior commitment to fund

another RECAP project was in retaliation for RECAP’s

filing of a complaint with HUD challenging the denial of a

permit to construct and operate the halfway houses. The

Petition fails to identify any “compelling reason” why this

Court should review these holdings, which do not conflict

with the decision of any other circuit court, decide “an

important question of federal law that has not been, but

should be, settled by this Court,” or determine any ques-

tion “in a way that conflicts with relevant decisions of this

Court.” See Sup. Ct. Rule 10. Accordingly, the Petition

should be denied.

A. Background

RECAP, which has been joined in this lawsuit by the

United States of America (“government”), is a not-for-

profit corporation that operates federal and state-funded

programs for persons in need. Its complaint alleges that

the City of Middletown, the Citys Planning Board (the

“Board”), and Mayor Joseph DeStefano (“DeStefano” or

“mayor”) (collectively, the “City”) violated the FHA, the

ADA and the Rehabilitation Act by denying RECAP’s

application for a special use permit to establish two

transitional houses for persons recovering from alcoholism

and their children (the “halfway houses”) in Middletown in

1994. RECAP had planned to create an integrated support

community by combining several vitally needed services —

3

including Head Start and the halfway houses — on two

contiguous parcels of land located across the street from

RECAP’s main offices. RECAP’s plans were scuttled when

the Planning Board denied RECAP’s application for a

special use permit to operate the halfway houses, although

the Board approved RECAP’s other proposed uses.

One of the two parcels that RECAP had agreed to

acquire was owned by Richard Rowley (the “Rowley

property”), where he had operated a lumber business.

Rowley’s property measured 2.5 acres and ran alongside

the Ontario & Western (“O & W”) railroad. RECAP

planned to use existing buildings on the Rowley property,

as well as to build new space, to accommodate Head Start,

day care, and health care offices.

RECAP’s plan also called for acquiring a much smaller

property located adjacent to Rowleys. This property,

owned by Michael Formisano (the “Formisano property”),

was only a half-acre, and like Rowley’s property it bor-

dered the O & W railroad track. RECAP planned to

convert an existing building on the Formisano property

into a halfway house for men recovering from alcoholism

and to construct a new building (which would encroach

slightly onto the Rowley property) to house recovering

alcoholic women and their children.

Both properties were zoned for industrial use, with

the Formisano property zoned I-1 (light industrial) and the

Rowley property zoned I-2 (heavy industrial). All of RE-

CAP’s proposed programs were permitted uses in I-1 and

I-2 districts but required a special use permit from the

Planning Board. RECAP was required to make separate

permit applications for each property, and these were

4

considered by the Planning Board at five hearings between

August and December 1994.

After the first two hearings, the Planning Board

unanimously approved a special use permit for the Head

Start and other programs on the Rowley property. Al-

though the Rowley property was zoned for heavy indus-

trial use, bordered the O & W rail line, and was five times

the size of the neighboring Formisano lot, no Planning

Board member or other City official gave any indication of

seriously considering rejection of RECAP’s application in

order to preserve the Rowley parcel for industrial devel-

opment. Nor did anyone suggest rejecting the application

because users of the property, such as the Head Start

children, would be exposed to nuisance or danger from

passing trains on the O & W rail line. Claims about

preserving the industrial use and the nuisance of passing

trains would later form the purported basis for rejecting

the permit for the halfway houses on the tiny Formisano

property, but with respect to the Rowley permit, discussion

at the hearings focused mostly on such matters as auto-

mobile traffic and property taxes.

After the approval of the Rowley permit, the Planning

Board went on to consider the Formisano permit during

three additional hearings and, after the last hearing in

December, denied the permit. The Board’s purported

grounds were that (1) use as halfway houses might impede

industrial development in the area (though it did not say

the same about Head Start or the other programs on the

Rowley property), and (2) the railroad might be a nuisance

to residenis of the halfway houses (though this point never

even came up during the discussion of whether to issue a

permit for Head “tart, where the children would be im-

pacted by train traffic at least as much as the recovering

5

alcoholics.) Denial of the permit destroyed the entire

project because RECAP’s plans to develop the two proper-

ties were intertwined financially.

Over the course of the five Planning Board hearings,

numerous City officials, including the mayor (who did not

sit on the Planning Board but appointed its members), the

assistant corporation counsel, and the Planning Board

members themselves, made statements indicating that

they opposed the Formisano permit because of the nature

of the people who would reside in the halfway houses. This

evidence was central to the Second Circuit’s fact-based

decision that a trial was required on RECAP’s and the

government's disparate treatment claim. We review some

of these discriminatory statements in the following para-

graphs.

At the August hearing, Mayor DeStefano gave the

first of what would be several protracted statements in

opposition to the Formisano permit. Aug. Hrg. Tr. at 163-

67.’ In every speech he made, his point was that the

halfway houses should be prohibited, not because of

concerns about industrial development or because the

railroad would be a nuisance or a danger to the halfway

house residents, but because he believed Middletown

already had too many facilities for the disabled and others

who require social services. As the transcripts reveal, he

was not very subtle in repeatedly voicing his belief that

recovering alcoholics would negatively impact the quality

of life of other Middletown residents.

' The hearing transcripts are attached to the Affirmation of Alex

Smith dated February 1, 2000, Exhibits H through L.

6

At the first hearing, DeStefano stated:

RECAP recently had an approval of the

Hasb[rouck] Funeral home for a similar type use.

And what I have tried to convey to Recap ... is

that enough is enough. ... Middletown is not the

hub of human services programs.

Do it in Goshen. Do it in Warwick. Do it in Mont-

gomery. Find a building there... .

Id. at 164-65 (emphasis added).

At the next hearing in September, the mayor again

indicated that Middletown should not be “a Social Service

hub.” Sept. Hrg. Tr. at 86-88. A RECAP official later

reminded the Board that “[p]leople who are alcoholic are

protected by the Fair Housing Act” and “[t]o deny them a

right to housing is a violation of the law. They have a right

to have a home just like anyone else.” Jd. at 158. Unde-

terred, the mayor remarked: “I strongly don’t feel that ...

another alcoholism treatment program is something that

would benefit our orderly development in that area,” and

he continued, “it goes back to the whole concept of how

much a community can absorb.” Jd. at 174. Without

explanation, the mayor asserted that RECAP’s alcoholism

facilities would “infringe upon future development in that

area,” id. at 181, and concluded by saying: “I think

brighter days are ahead for Middletown, if we can control

the different not-for-profit agencies that are coming in...

and the mission statement is admirable ... but they

should not be doing it solely in the City of Middletown.” Id.

at 181-82.

7

Other officials speaking at the September hearing

echoed the mayor’s views. The assistant corporation

counsel stated: “The problem is that as the Mayor has

identified, there seems to be a tremendous over-

concentration of these types of facilities in this City as

compared to the surrounding townships ... that’s why

we're wrestling with it — why are they all here?” Id. at 201-

02 (emphasis added). He also questioned, without citing

any basis, whether “these people would or would not have

criminal histories that are coming into this facility,”

because “there are people out there that are going to be

living near this facility [and] are going to want to know

these answers.” Id. at 192.

Board member Dan Miner then stated: “The question

that we're all wrestling with ... is if this [alcoholism] is

very wide spread in our society . .. why do we have to have

all the treatment facilities right here in Middletown?....”

Id. at 205 (emphasis added). Board Chairman Seth Arluck

wrapped up the September hearing by saying “obviously

this is probably a good project. There’s a need for this

project. There’s some issues about whether it should be in

Middletown, and that’s what it boils down to.... ” Id. at

217 (emphasis added).

At the next hearing in October, City Alderman Dan

Long made the first extended comments of any speaker

regarding industrial development. According to Long, the

Formisano site was “on an active rail line” and the City

needed to “develop this corridor to help us go into the year

2000 so we can survive.... ” Oct. Hrg. Tr. at 33-35. The

O & W rail line was rarely used, however, as the City

concedes at page 10 of the Petition, and Planning Board

members were aware of this fact. See Miner Dep. at 33

(Board member Miner testifying that in 1994 “I don’t

8

believe [the rail line] was very active”); McCormick Dep. at

52 (Board member Kenneth McCormick testifying that

“they don’t use the trains now. Maybe one goes through

once a year... . [NJot a real schedule”);? Grammas Dep. at

40 (Board member Ronald Grammas testifying that the

rail line was “[nJot very [active]” in 1994); see also Fusco

Aff. dated Jan. 31, 2000 9 3 (Middletown Commissioner of

Public Works Alfred Fusco stating that in 1994 “traffic

along the line was minimal]”).’

At the October hearing, Mayor DeStefano returned to

his point that Middletown already had too many social

service programs, saying: “New York State recognizes that

a large concentration of similar type facilities can substan-

tially alter a community.... I strongly believe that the

City of Middletown can make a very strong case that our

community has exceeded any reasonable level of services

and standards that are provided for the special needs

population. ...” Oct. Hrg. Tr. at 38. The mayor then read

a list of several “New York State licensed adult residential

care facilities” in Middletown, id. at 38-41, and stated:

I believe the significant factor for consideration

here is the cumulative impact of the Governmen-

tally, not for profit, and privately owned residen-

tial facilities for the disabled, mentally retarded,

those who suffer from mental illness, drug and

alcohol and substance abuse problems.

... [ submit to you that the cumulative impact is

negative from both a tax exempt perspective, in

* While “once a year” is an exaggeration, this comment illustrates

Board members’ awareness that the rail line was infrequently used.

* All cited deposition pages are attached as exhibits to the Declara-

tion of Martin J. Siegel dated March 31, 2000.

9

which we are nearly forty-two percent tax ex-

empt in our community, and quality of life per-

spective.

Id. at 41-42 (emphasis added). His reference to “quality of

life” was a not very subtle invocation of “NIMBY” (not in

my back yard), and is classic evidence of discriminatory

intent.

The mayor then shifted to the question of industrial

development, contending that “the City from the day of its

inception, planned the rail lines for industrial and com-

mercial development.” Jd. at 43-45. Richard Rowley then

spoke, pointing out that the Formisano property was far

from attractive for industrial use, given its small size. Id.

at 52-53. The mayor then made yet another protracted

statement, stating “the community can’t take it all [the

county’s programs for substance and alcohol abuse]. And

that’s the bottom line with the whole thing.” Id. at 79

(emphasis added). “There’s a threshold that a community

cannot support. Cannot become the social services hub of

the County.” Id. at 82.

At the next hearing in November, Middletown’s

Director of Community and Economic Development, Neil

Novesky, made the discriminatory suggestion that busi-

nesses would not wish to locate next to facilities serving

recovering alcoholics: “We’ve had a lot of interest [by

potential buyers of Rowley’s property], but if the building

ts occupied by a certain type of social service or support

service program, perhaps occupying the building next door

will be deterred.” Nov. Hrg. Tr. at 82-83 (emphasis added).

There was also discussion at the November hearing

regarding train traffic as a potential nuisance. Chairman

Arluck speculated that trains would idle continuously near

10

the Formisano property at night and “create quite a

nuisance,” id. at 69-70, 74, but he also conceded that “[a]

diesel may never sit there and idle all night.... I’m just

saying that’s a possibility.” Id. at 99-100. As stated above,

Board members knew that the rail line was rarely used,

and no City official was then — or is now — aware of com-

plaints by any Middletown resident about adverse effects

from train traffic, such as excess noise or fumes. See Miner

Dep. at 183-84; Moson dep. at 73; Fusco dep. at 129. There

was also no evidence whatsoever that trains would actu-

ally idle next to the little Formisano property rather than

in train yards located miles away, or that they would idle

only at night when Head Start and the other programs on

the Rowley property were closed, but not during the day

when they were open, thus making it applicable to the

halfway houses but not to the Head Start program. Fur-

thermore, the Board ignored the fact that buffers can

always be erected between buildings and railroad tracks to

reduce or eliminate any nuisance, and they further ig-

nored RECAP’s reminder at the November hearing that

there were already numerous residences adjacent to the

train track. See Nov. Hrg. Tr. at 93.° This fact is also made

obvious by a detailed map of the entire area which plain-

tiffs submitted in opposition to the summary judgment

motion. See Siegel Decl. dated Mar. 31, 2000 Ex. 1.

At the final hearing on December 1, 1994, Chairman

Arluck summarized the reasons why Board members could

vote for or against the Formisano application. Dec. Hrg.

* While the halfway houses would have been somewhat closer to

the tracks than the Head Start building, the difference was not great,

and RECAP’s plans (of which the Planning Board was aware) called for

a children’s play area closer to the tracks.

11

Tr. at 44-46. Among the reasons to vote in favor was that

the Formisano property was “unlikely to be purchased in

the near term for an industrial or commercial use.” Jd. at

45. Turning to “reasons to deny this application,” Arluck

stated:

Another reason that was brought up ... by the

Mayor and Council Members that there’s an over-

concentration of residential and social service fa-

cilities in the City, which tends to put a demand

on City services, while at the same time eroding

the tax base.

Id. at 46 (emphasis added). Arluck then recommended

denial “because it is in an industrial zone, and I am

concerned about . . . other industrial users in this area. I’m

concerned about train traffic next to a residential facility.”

Id. at 51.

Board member Thomas Swierski then explained why

he would vote to deny RECAP’s application and concluded:

I believe that the City... has extended itself and

embraced significant other services that have

come our way, and I have to say that for us to be

the magnet for the area is not necessarily for the

best industrial development of this or any other

project.

So I would say, Mr. Chairman, that I feel that the

proper industrial development of this is more

important in my vote, and I will vote no for this

project.

Id. at 54.

No other Board member gave a statement at the

hearing explaining his vote, except for Ronald Grammas,

who voted in favor of the application. Jd. at 55-56. Board

12

member Miner made no remarks at the hearing to explain

his vote but he later acknowledged in his deposition that

he was “concern[ed]” during the hearings that Middletown

was being overwhelmed by social service facilities. Miner

Dep. at 69-72, 142, 239.

When the Board finally voted at the December hear-

ing, the Formisano application was denied 4-2, with Board

members Arluck, Swierski, Miner, and Moson voting

against and Grammas and McCormick voting in favor.

Dec. Hrg. Tr. at 57-58. Significantly, although Arluck had

listed the alleged “over-concentration” issue as one of the

reasons to vote against the application — and Swierski had

explicitly mentioned this reason in his remarks prior to

voting — the reason is absent from the final written resolu-

tion denying the application, which was drafted after the

December hearing by the corporation counsel's office. See

Siegel Decl. dated Mar. 31, 2000 Ex. 23.

The Formisano lot remained abandoned until 1996,

when the property was rented to a restaurant supply

company. The Rowley property was eventually occupied by

two small businesses, Keck Industries (a furniture manu-

facturer and finisher) and Best Mexican Foods. The City

calls these businesses “heavy commercial/light industrial,”

Petition at 11 n.7, but this description is clearly inaccu-

rate.’

* The City, attempting to persuade this Court that there was a

legitimate debate going on between the mayor and RECAP about the

need for the halfway houses, claims that RECAP conceded that there

may not have been a need. See Petition at 23. There are no citations to

the record for this, and it is not true.

13

B. The City’s Retaliation Against RECAP

In the early 1990’s, RECAP acquired a building at 208

North Street in Middletown, where it planned to create a

facility for homeless and potentially homeless individuals,

some of whom were suffering from disabilities. On June

23, 1993, Neil Novesky advised RECAP by letter that

“[t]he City of Middletown Office of Community and Eco-

nomic Development is pleased to provide this commitment

of $53,139 for the purchase of furnishings for the project to

be located at 208 North Street.” Figueroa Aff. dated Mar.

28, 2000 Ex. 1 (emphasis added).

On December 1, 1994, the Planning Board denied the

Formisano permit, and four days later, RECAP’s attorneys

wrote DeStefano that the permit denial violated the FHA

and the ADA and that legal action would result unless the

permit denial was rescinded. Jd. Ex. 2. Meanwhile, con-

struction on the 208 North Street project was completed

and on December 8, 1994, RECAP’s Antonio Figueroa

requested release of the $53,139 in promised funds. Jd. Ex.

3. But the funds were never released.

In January 1995, RECAP filed a HUD complaint

under the FHA, ADA and Rehabilitation Act regarding the

Formisano permit denial. Soon after, a RECAP affiliate

called PACER won a lawsuit reversing the Middletown

Planning Board’s denial of a special use permit for yet

another facility, a boardinghouse serving low-income,

‘homeless individuals, some of whom were disabled.°

* This result was affirmed on appeal. See PACER INC. v. Planning

Bd. of Middletown, 635 N.Y.S.2d 704 (App. Div. 3d Dep’t 1995).

14

After Figueroa’s December 8, 1994 request for the

release of the promised funds for 208 North Street, the

assistant corporation counsel informed Figueroa that the

funds would no longer be available as a grant, but instead

as a “loan” subject to conditions set by the City. Id. { 14.

Then, on December 20, 1994, during a critical phone call,

the assistant corporation counsel identified a number of

problems that DeStefano apparently had regarding secu-

rity for the loan (which had originally been committed as a

grant), whereupon Figueroa asked why the mayor contin-

ued to present obstacles to the 208 North Street project.

Counsel responded that “if RECAP kad not pursued legal

action against the Mayor, he would be much more coopera-

tive” and that RECAP has to learn “not to bite the hand

that feeds it.” Id. 4 15 (emphasis added). Figueroa memo-

rialized this telephone conversation in a letter the follow-

ing day. Id. Ex. 5.

In April 1995, Figueroa received a letter from DeSte-

fano raising new concerns about 208 North Street, which

Figueroa answered fully by letter. Jd. Exs. 7, 8. RECAP

received no response from the mayor until early 1996,

while RECAP and the City were still litigating before

HUD about the Formisano permit. At that time, DeStefano

told a RECAP official that the City had totally withdrawn

its funding commitment for 208 North Street.

C. Procedural History

RECAP filed this action in the Southern District of

New York on November 26, 1997 against the City, the

Planning Board, and the mayor alleging claims for dispa-

rate treatment. failure to make a reasonable accommoda-

tion, disparate impact, and retaliation under the FHA,

15

ADA and Rehabilitation Act. On June 17, 1998, the United

States filed a complaint in intervention.’

The defendants moved for summary judgment, argu-

ing inter alia that the prospective residents of the halfway

houses were not disabled under the statutes and that

there was insufficient evidence to support plaintiffs’

claims. The district court issued an unpublished Memo-

randum and Order on September 25, 2000 granting

defendants’ motion in its entirety. See Petition App. A. The

district court assumed the prospective residents were

disabled and that plaintiffs had established a prima facie

case under the FHA and ADA, but dismissed each of

plaintiffs’ claims on the ground that defendants’ bases for

denying the Formisano permit were legitimate as a matter

of law and that there was no evidence of pretext.

RECAP and the government appealed,’ and the

Second Circuit issued a unanimous opinion on February 5,

2002 (as corrected on February 19, 2002) vacating the

district court’s decision in part. See Petition App. B. The

circuit held as a matter of law that the individuals who

would have resided in the halfway houses were disabled

under the federal statutes because state regulations

limited halfway house admission only to individuals who

were unable to live independently and care for themselves

without suffering a relapse, which by definition satisfies

the “disability” standard under the relevant federal

statutes and regulations. The circuit further held that

" The government raised the same claims as RECAP, except it did

not allege retaliation or any claims against the mayor individually.

* RECAP did not appeal the dismissal of the individual claims

against the mayor.

16

there was ample evidence for a reasonable jury to find that

the defendants’ proffered reasons for denying the Formis-

ano permit were pretextual. The circuit also held that a

reasonable jury could find that the City reneged on its

funding commitment for 208 North Street in retaliation

for RECAP’s December 5, 1994 letter and subsequent

HUD complaint regarding the permit denial. The circuit

affirmed the district court’s dismissal of the reasonable

accommodation and disparate impact claims.

4

vv

REASONS FOR DENYING THE WRIT

POINT I

THE SECOND CIRCUIT CORRECTLY APPLIED

THIS COURT’S PRECEDENTS IN HOLDING AS A

MATTER OF LAW THAT THE PROSPECTIVE

RESIDENTS OF RECAP’S PROPOSED HALFWAY

HOUSES WERE DISABLED

The Petition asks this Court to review the Second

Circuit’s holding that the individuals who would have

resided in the halfway houses on the Formisano property

were disabled under the FHA, the ADA and the Rehabili-

tation Act. The circuit based its holding on New York State

regulations which prescribe the type of individuals who

may reside in halfway houses. See Petition App. B at 32a-

36a. Under those regulations, which are attached hereto

as Appendices A and B, RECAP could only have admitted

individuals who were (1) diagnosed with alcoholism (an

undisputed “impairment” under the federal statutes) and

(2) whose conditions remained so severe as to preclude

them from living independently without relapsing. As the

Second Circuit recognized, “[bJecause the inability to live

independently without suffering a relapse — a baseline

iii ai

17

prerequisite for admittance to the RECAP facility — limits

the major life activity of ‘caring for one’s self,’ an activity

that is ‘necessarily [an] important part[] of most people’s

lives,’ the residents of the proposed halfway houses would

have met ... the statutory definition of a disability.” See

Petition App. B at 35a (quoting Toyota Motor Mfg. Ken-

tucky, Inc. v. Williams, 534 U.S. 184, 122 S. Ct. 681, 693

(2002)). In making this determination, the circuit precisely

applied this Court’s decisions construing the definition of

disability, and thus there is no need for this Court to grant

review.

A. The New York State Regulations

State regulations existing in 1994 and today set strict

standards for the operation of “community residences for

alcoholism,” which are “facilities for persons who are

unable to maintain abstinence and continued recovery in

an available independent living situation at a particular

time.” N.Y. Comp. Codes R. & Regs. tit. 14, § 375.1(a). One

type of community residence is a “halfway house.” Id.

§ 375.1(c). The regulations governing halfway houses

provide:

(c) A person shall be admitted to a halfway

house only if he or she:

(1) has been diagnosed as suffering from alcohol

dependence;

(2) is abstinent from alcohol and mood-altering

drugs, except drugs prescribed by a physi-

cian familiar with the person’s treatment for

alcoholism or the treatment of a coexisting

physical or mental illness or mental disabil-

ity;

18

(3) is not so mentally ill or developmentally

disabled that he or she is incapable of

participating in the program of the facility;

(4) has completed a course of alcoholism treat-

ment or rehabilitation in an inpatient or

outpatient setting; or is involved in an in-

tensive course of alcoholism rehabilitation

in an outpatient setting;

(5) is determined to be unable to abstain with-

out continued care in a structured suppor-

tive setting; and

(6) is in need of alcoholism services on an out-

patient basis in addition to the supportive

counseling available in the halfway house

as determined by the referring alcoholism

program and such services are arranged

unless they are unavailable.

N.Y. Comp. Codes R. & Regs. tit. 14, § 375.8(c) (emphasis

added).

B. The Prospective Halfway House Residents

Were Disabled as a Matter of Law

The FHA, the ADA, and the Rehabilitation Act each

defines disability’ as: (1) a physical or mental impairment

which substantially limits one or more of a person’s major

life activities, (2) a record of having such an impairment,

or (3) being regarded as having such an impairment. See

42 U.S.C. §3602(h); 42 US.C. §12102(2); 29 U.S.C.

§ 705(20)B). An individual is considered disabled pursuant

* For convenience, we employ the term “disabled” or “disability” as

a synonym for the term “handicap” used in the FHA.

19

to the first definition if he or she: (1) suffers from a physi-

cal or mental impairment; (2) the impairment affects a

major life activity; and (3) the effect is substantial. See

Bragdon v. Abbott, 524 U.S. 624, 631, 118 S. Ct. 2196,

2202 (1998).

The City does not contest the Second Circuit’s deter-

mination that RECAP’s prospective residents suffered

from a physical or mental “impairment.” See Petition App.

B at 33a. Nor could it, because the state regulations

require that a halfway house resident be “diagnosed as

suffering from alcohol dependence,” N.Y. Comp. Codes R.

& Regs. tit. 14, § 375.8(c)(1), a condition that is explicitly

identified as an “impairment” by federal regulation. See 24

C.F.R. § 100.201; 28 C.F.R. § 41.31(b)(1).

The Second Circuit further held that, by virtue of the

regulatory criteria allowing admission only if the applicant

cannot live independently, the prospective residents’

addiction to alcohol would arfect the “major life activity” of

living independently and caring for one’s self. See Petition

App. B at 34a-35a. There can be no dispute that the ability

to live independently and care for one’s self is a major life

activity; indeed, the express purpose of the Rehabili-

tation Act and the ADA is to guarantee the rights of people

with disabilities to “live independently.” 29 U.S.C.

§ 701(a)(3)(A); see also 29 U.S.C. § 701(b)(2); 42 U.S.C.

§ 12101(a)(8). Keeping with the central purpose of these

statutes, federal regulations define “major life activities”

to include “functions such as caring for one’s self.” See 24

C.F.R. § 100.201 (FHA); 28 C.F.R. § 41.31(b)(2); 45 C.FR.

§ 84.34)(2)(ii) (Rehabilitation Act); see also Bragdon, 524

U.S. at 638-39, 118 S. Ct. at 2205 (discussing these regula-

tions with approval). In its recent Williams decision, this

Court recognized the same concept in stating that major

20

life activities are those which are “of central importance to

daily life.” 122 S. Ct. at 691. As the circuit recognized, this

“encompasses normal activities of daily living; including

feeding oneself, driving, grooming and cleaning home.” See

Petition App. B at 34a.

The residents of RECAP’s halfway houses would have

needed assistance in the most basic aspects of daily living,

including “managing bills, ... dealing with landlords,

buying groceries, preparing food, [and] keeping the place

clean.” Quinlan dep. at 77. In Williams, this Court made

clear that “household chores ... are among the types of

manual tasks of central importance to people’s daily lives,”

122 S. Ct. at 693, and the circuit, applying that concept,

therefore correctly found that RECAP’s prospective resi-

dents, who would be unable to perform such chores, were

disabled.

Moreover, in order to be admitted to the halfway

houses, an applicant would have to be so impaired by

alcoholism as to be unable to maintain a job without the

supportive environment of the halfway house. When

treatment for a disability precludes or interferes with

working, the major life activity of employment is substan-

tially limited. See Guice-Mills v. Derwinski, 967 F.2d 794,

797 (2d Cir. 1992). The City confuses the issue by arguing

that at some point the residents would have been able to

work, but that was only if they continued living in the

halfway houses, receiving counseling and other support

services, or were no longer in need of a supportive envi-

ronment, at which point they would be discharged. More-

over, while they were residents, they would receive

outpatient services, as required by N.Y. Comp. Codes R. &

Regs. tit. 14, § 375.8(c)(6), which could total “as much as

six hours a day,” while counseling would have exhausted

er re

21

an additional one to one and one-half hours. Hawkins dep.

at 51. Consequently, RECAP’s clients would have been

unable to have meaningful employment when they first

entered the facilities, and while they remained as resi-

dents, they would have been limited in what work they

could perform. Hawkins dep. at 52-54.

These limitations were also substantial, as the circuit

found, because the residents “are unable to abstain from

alconol abuse without continued care; absent assistance,

they cannot adequately care for themselves.” See Petition

App. B at 35a-36a. These are the definitions for admissi-

bility under the state regulations, and they mean that no

one can be admitted unless they are substantially limited

in their ability to live independently and care for them-

selves without assistance. See N.Y. Comp. Codes R. &

Regs. tit. 14, § 375.8(c)(5).”°

The City would have this Court rule that while living

at the halfway houses, a recovering alcoholic was somehow

cured, as one who has myopia is cured by using corrective

lenses. But, as this Court recognized in Sutton v. United

Air Lines, Inc.:

The use of a corrective device does not, by itself,

relieve one’s disability. Rather, one has a disabil-

ity ... if, notwithstanding the use of a corrective

device, that individual is substantially limited in

a major life activity. For example, individuals who

use prosthetic limbs or wheelchairs may be mobile

and capable of functioning in society but still be

disabled because of a substantial limitation on

* The halfway house residents would have been so impaired by

their drinking that they required a thirty-day hospitalization before

coming to the halfway houses. See DePrado dep. at 10.

22

their ability to walk or run.... The use or non-

use of a corrective device does not determine

whether an individual is disabled; that determi-

nation depends on whether the limitations an in-

dividual with an impairment actually faces are

in fact substantially limiting.

527 U.S. 471, 488, 119 S. Ct. 2139, 2149 (1999) (emphasis

in original). The recovering alcoholics who would have

resided at the halfway houses would have received treat-

ment — like the wheelchair described in Sutton — which

would have improved their condition relative to alcoholics

who were still drinking. Nonetheless, even with that

t satment, RECAP’s clients would have been unable to live

independently, care for themselves, or engage in normal

jobs. As such, they would have been disabled under the

applicable statutes while living at the halfway houses,

even after beginning the process of recovery. In short, even

if RECAP’s clients eventually would have learned to

handle basic life skills and hold down some limited em-

ployment while residing in the halfway houses, they would

have been unable to do so on their own without a struc-

tured supportive environment. That inability constitutes a

“disability.”

The City also argues that the state regulations permit

discharge between three and nine months after admission

and that this is too short to qualify as having a substantial

effect on a major life activity. The circuit, and RECAP,

disagree. The regulations also make it clear that “no

resident shall be dischargec: if he or she continues to need

‘the services of the residence. ...” N.Y. Comp. Codes R. &

Regs. tit. 14, § 375.8(e). There is no defined time limit on a

person’s stay in a halfway house; they stay until they have

attained the ability to live independently. See id.

23

§ 375.1(g). Given these standards, the Second Circuit

correctly held that the residents’ impairments would be

“long-term.” See Petition App. B at 36a.

The City further asserts that the Second Circuit failed

to make an “individualized assessment” of the effect of

alcoholism on each RECAP client. See Petition at 9. But

such an individualized assessment is not needed in this

case because, by operation of the state regulations, no

individual would have been eligible to live in the proposed

halfway houses unless he or she was both an alcoholic and

unable to live independently while simultaneously ab-

staining from alcohol. Alcoholism may not be a per se

disability, as the City argues, see Petition at 9-10, and

certain alcoholics who are further along in the process of

recovery may not be substantially limited in performing a

major life activity. But RECAP could not have adinitted

such people to its halfway houses. As the Second Circuit

recognized, “the existence of statutorily defined levels of

impairment obviates the concern expressed in Williams

about varying intensities of symptoms.” Petition App. B. at

35a n.3.

The Citys final point that a wealthy recovering

alcoholic might obtain services outside a halfway house is

irrelevant. That person is just as disabled as a poor person

if he cannot live independently; where he goes for help has

nothing to do with the question of who is disabled under

federal law.

ame —

24

_ In sum, the Second Circuit’s decision is a simple and

straightforward application of this Court’s decision in

Williams, and review by this Court is not warranted.”

POINT II

THIS COURT SHOULD NOT REVIEW

THE SECOND CIRCUIT’S HOLDING THAT

THERE IS A QUESTION OF FACT FOR

TRIAL REGARDING PRETEXT

The City also asks this Court to rewiew the Second

Circuit’s holding that there is a questior cf fact as to

whether the City’s proffered justifications ior denying the

Formisano permit were pretextual. As the Rules of this

Court provide, certiorari is “rarely granted when the

asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule of law.” Sup. Ct. R.

10. The errors alleged fall only within these categories. It

is quite clear, moreover, that the Second Circuit did not err

because the record is replete with evidence of discrimina-

tory intent.

“ The Petition makes little effort to challenge the Second Circuit’s

holding that the prospective residents of the halfway houses also meet

the statutes’ second definition of disability: having a record of an

impairment that substantially limits a major life activity. See Petition

App. B at 36a. “The intent of this [second definition of disability] is to

ensure that people are not discriminated against because of a history of

disability.” 29 C.F.R. Pt. 1630 App., § 1630.2(k). The prospective

residents of RECAP’s halfway houses would have been so severely

impaired that they required a thirty-day hospitalization to treat their

alcoholism before arriving at the halfway houses. There is no question

that these people would have had a “record” of having an impairment

that substantially limited numerous major life activities.

25

The Second Circuit relied, inter alia, on the various

discriminatory statements quoted in the Background

section of this brief, “from which a reasonable juror could

infer that [the Board] denied RECAP’s permit application

because of the identity of its clients.” Petition App. B at

39a. The comment by Neil Novesky, the Citys head of

development, that “if the building is occupied by a certain

type of social service or support service program, perhaps

occupying the building next door will be deterred,” see

supra p. 9, is a classic “NIMBY” discriminatory remark,

and is sufficient by itself to create a jury question.

Equally significant evidence lay in the Board’s differ-

ential treatment of the Rowley and Formisano permit

applications. The circuit stated:

The applications for both properties were made

at the same time, by the same entity, for adjoin-

ing properties; the principal difference between

them seems to be the people whom the projects

sought to serve: The Rowley property would

serve children, and the Formisano property

would serve recovering alcoholics. The plaintiffs

argue persuasively that if industrial growth and

development were the Planning Board’s true con-

cerns, then the Board would have also raised the

issue in connection with the Rowley property. ...

The plaintiffs also introduced evidence that

calls into question the defendants’ second prof-

fered reason for denying RECAP a special-use

permit: to protect the halfway house residents

from the nuisance effect of the railroad. The evi-

dence indicates that at the time of the Planning

Board’s decision, trains rarely traveled on the

O & W line; when they did, it was at very low

26

speeds. A reasonable juror might wonder why the

Planning Board worried more about the impact

of the railroad on recovering alcoholics than on

the children whom it knew would be receiving

education, medical attention, and other social

services at the adjoining Rowley property. More

generally, a juror could infer that if the industrial

development and railroad-nuisance concerns led

the Planning Board to deny RECAP the special-

use permit for the Formisano property, then

these same concerns would have led the Plan-

ning Board to deny it a special-use permit for the

Rowley property. These inferences could estab-

lish that the Planning Board’s disparate treat-

ment of these two properties demonstrates

intentional discrimination against recovering al-

coholics and that its stated concerns about the

Formisano property were pretextual.

Petition App. B at 41a-43a.

The circuit also noted “additional evidence of pretext”

in the form of deposition testimony from one Planning

Board member that “the concern that Middletown had a

high number of treatment facilities in general was cer-

tainly brought home to me” and testimony from another

that he was not concerned with industrial or commercial

development when it came to the Rowley property. See

Petition App. B at 43a. The ci-cuit also mentioned that a

map of the relevant area showed that it “was not largely

industrial,” which “may cast doubt in jurors’ minds upon

defendants’ assertion that they sought to ‘preserve’ it as an

industrial area.”” Id. There was still other evidence to

* The City chides the circuit for calling the neighborhood “not

largely industrial’; according to the City, the two properties “are

(Continued on following page)

27

which the circuit did not refer, such as Middletown’s 1995

“Master Plan,” a contemporaneous City-created document

that identified large areas on the northern and southern

ends of the town as potential locations for industrial

development. See Siegel Decl. Dated Mar. 31, 2000 Ex. 14.

| Neither area included the Rowley and Formisano lots. The

Master Plan refutes the City’s contention at page 11 of the

Petition that there was a severe shortage of industrially-

developable land; it also discloses where the City really

believed industrial development was supposed to occur.

The City expends much effort in its Petition attempt-

ing to draw inferences in its favor from the evidence, see

pages 22-27 — which of course is impermissible at sum-

mary judgment — and even makes the startling claim that

| “it is clear from the record that all of [the Board members’]

| votes were based on sound planning concerns.” Petition at

23. But there is no doubt that the Second Circuit correctly

held that there is a question of fact for trial regarding

pretext.

practically ringed by commercial uses.” See Petition at 14 n.13 (empha-

sis in original). But the maps in the record show many residences in the

area, and only one industrial use. See Siegel Decl. dated Mar. 31, 2000

Ex. 1; Joint Aff. of Fusco, Duncanson and Bruni dated Jan. 31, 2000 Ex.

O. On a motion for summary judgment, the City is not entitled to draw

inferences that favor its position.

EEE a eT en een ee eee eee

28

POINT II

THIS COURT SHOULD NOT REVIEW THE SEC-

OND CIRCUIT’S HOLDING THAT THERE IS A

QUESTION OF FACT FOR TRIAL REGARDING

RECAP’S RETALIATION CLAIM

The City asks this Court to review another fact-based

question: whether there is sufficient evidence for a jury to

find that the withdrawal of the City’s funding commitment

for 208 North Street was in retaliation for (1) RECAP’s

threatening to sue over the denial of the Formisano

permit, as expressed in its attorneys’ letter dated Decem-

ber 5, 1994, and (2) RECAP’s filing of a complaint about

that issue with HUD in January 1995. Both actions were

protected activity, as the circuit found, because they were

actions taken to protest statutorily prohibited discrimina-

tion. See Petition App. B at 47a.

The City would have this Court overrule the circuit's

finding that there are material facts in dispute on this

issue. For example, the City contends that RECAP wanted

to use a banned contractor in violation of state regulations,

which RECAP denies, while RECAP points to a statement

by the City’s assistant corporation counsel to Antonio

Figueroa of RECAP, memorialized by Figueroa in a letter,

that “if RECAP had not pursued legal action against the

Mayor, he would be much more cooperative” and RECAP

has to learn “not to bite the hand that feeds it”.” Summary

“ The City tries to mitigate the obvious retaliatory import of its

own lawyer's statement by arguing that he spoke before the HUD

complaint was filed. But that leaves the December 5 letter threatening

a suit, which came just before he spoke. To overcome the letter, the City

argues that it was not authorized by RECAP’s board. This frivolous

point was not deemed worthy enough to require comment by the circuit,

(Continued on following page)

29

judgment could not be granted in the face of such conflict-

ing evidence, and the issue most certainly is not worthy of

this Court’s review.

+

CONCLUSION

For the reasons set forth above, the writ should not be

granted.

Dated: June 5, 2002

Respectfully submitted,

SHELDON H. ELSEN

Counsel of Record

LESLIE A. LUPERT

JOHN J. MONTONE

ORANS, ELSEN & LUPERT LLP

One Rockefeller Plaza

New York, NY 10020

(212) 586-2211

SIMEON GOLDMAN, Esq.

DISABILITY ADVOCATES, INC.

Five Clinton Square, 3rd Floor

Albany, NY 12207

(518) 432-7861

Attorneys for Respondent RECAP

no doubt because the letter made clear that there was a possibility of

litigation, which happened just a few weeks later.

APPENDIX A

la

N.Y. Comp. Codes R & Regs. Tit 14, § 375.1

Section 375.1 Background and intent.

(a) Community residences for alcoholism are facili-

ties for persons who are unable to maintain abstinence

and continued recovery in an available independent living

situation at a particular time. Community residences are

specifically designed and operated to assist persons

suffering from alcoholism to develop or maintain recovery

in a semi-independent situation through the provision of a

structured alcohol-free setting, encouragement of peer

group support and training and assistance in the skills of

community living.

(b) A community residence must exist in a system of

services for its clientele. It cannot be an independently

functioning facility without cooperative relationships to

other service providers. This is particularly true of rela-

tionships with inpatient rehabilitation programs and

outpatient clinics since these programs will be expected to

provide effective intensive treatment and rehabilitative

services which will allow community residences to carry

out their assigned mission in the system of services. If

inpatient rehabilitation and outpatient programs are not

available, accessible, effective and well coordinated with

community residences, community residences will be

unable to function effectively as prescribed by this Part.

This will be particularly problematic in relation to the

most underserved groups such as women, the elderly and

youth.

(c) Three types of community residences are defined:

halfway houses, recovery homes, and supportive living

facilities. In addition, longer-term residential chemical

dependency programs for youth constitute community

2a

residences. There are many other residential settings

other than independent living which may be of assistance

to alcoholic persons. However, such settings are not

community residences unless they conform to the re-

quirements established by this Part.

(d) All alcoholism community residences, regardless

of type, have e number of common characteristics, includ-

ing but not limited to the following:

(1) a structured alcohol-free environment supportive

of continued recovery;

(2) significant cooperation with other agencies in the

service delivery system to ensure coordinated, continuous

and effective services toward the highest level of recovery

and independent living of residents;

(3) a homelike environment providing maximum

support for recovery and maximum opportunity to learn

and practice the skills necessary for continued abstinence

in independent living; and

(4) responsible staff to support and assist the resi-

dent as needed in his or her recovery.

(e) A supportive living facility defined in this Part is

a unique living situation in which residents live together

in small groups, not exceeding 14, for mutually beneficial

support but without required onsite staff. Staff and super-

vision for a number of these small groups is provided from

a central location. This arrangement is designed to serve

persons who are unlikely to maintain abstinence in inde-

pendent living but who are able to maintain recovery with

peer-group support and minimal staff services.

3a

(f) As a facility which can only exist in a system of

services each community residence has an obligation to

work cooperatively with inpatient programs, other com-

munity residences, nonresidential alcoholism service

providers, mental health service providers, social service

providers, including especially providers of child care

services, vocational rehabilitation agencies, educational

institutions and local coordinating and planning groups to

ensure that services are available to meet the needs of

persons suffering from alcoholism in a continuous, timely

and coordinated manner.

(g) While community residences may provide resi-

dence for varying time periods, in all cases the length of

stay extends only until a reaident has attained the skills

and ability necessary to maintain abstinence and continue

recovery in an available less structured facility or in

suitable independent living.

APPENDIX B

f

:

i

gE

is

bs

4

4a

N.Y. Comp. Codes R. & Regs. tit. 14, § 375.8

Section 375.8 Program — additional requirements applica-

ble to halfway houses.

(a) Each halfway house shall have agreements with

one or more alcoholism outpatient programs to ensure the

availability of needed outpatient services to all residents

and to establish the conditions and procedures for coopera-

tive and continuous care and treatment in both the outpa-

tient program and the halfway house.

(b) Staff of the halfway house shall provide at least

the following services for residents in addition to those

required of all community residences:

(1) a structured program of continued services

toward recovery from alcoholism;

(2) a constant focus on the development and im-

provement of the skills necessary to recovery; and

(3) supportive counseling services to ensure that

needed services are obtained from community agencies

and to ensure continued progress in recovery.

(c) A person shall be admitted to a halfway house

only if he or she:

(1) has been diagnosed as suffering from alcohol

dependence;

(2) is abstinent from alcohol and mood-altering

drugs, except drugs prescribed by a physician familiar

with the person’s treatment for alcoholism or the treat-

ment of a coexisting physical or mental illness or mental

disability;

——=

5a

(3) is not so mentally ill or developmentally disabled

that he or she is incapable of participating in the program

of the facility;

(4) has completed a course of alcoholism treatment

or rehabilitation in an inpatient or outpatient setting; or is

involved in an intensive course of alcoholism rehabilitation

in an outpatient setting;

(5) is determined to be unable to abstain without

continued care in a structured supportive setting; and

(6) is in need of alcoholism services on an outpatient

basis in addition to the supportive counseling available in —

the halfway house as determined by the referring alcohol-

ism program and such services are arranged unless they

are unavailable.

(d) Residents shall also receive alcoholism services

and services from educational, vocational, social or mental

health service providers in the community as needed. Any

such services shall be reflected in the resident’s individual

recovery plan. Residents who are able shall be encouraged

to work in the community in paid or volunteer positions as

appropriate.

(e) Each halfway house shall be planned and pro-

grammed to allow discharge of each resident between

three and nine months after admission. However, no

resident shall be discharged if he or she continues to need

the services of the residence, except as provided in section

375.7(gX2) of this Part.

(f) Each resident of a halfway house shall have an

individual recovery , .an prepared by staff in cooperation

with the resident and, when applicable, staff of any

outpatient programs serving the resident.

6a

(1) The plan shall be prepared within 14 days of

admission.

(2) The plan shall specify goals to be attained while the

resident is in the residence, and the services and activities of

staff and the resident to enable attainment of goals.

(3) The plan shall be reviewed by residence staff

and, when applicable, outpatient program staff, and the

resident, at least monthly and revised as indicated.

(g) Each halfway house shall implement a process of

utilization review, which shall include at least a monthly

review of each resident who remains in the residence

longer than six months, or the facility’s planned length of

stay if less than six months. Such review shall be con-

ducted by the residence manager, the residence manager’s

supervisor, if one, and staff of other agencies providing

alcoholism services to the resident. The purpose of such

review shall be the determination of the necessity of

continued residence by the resident and, if continued stay

is necessary, the services and circumstances necessary to

allow the resident to be discharged. Services identified

shall be incorporated into the resident’s individual recov-

ery plan as a discharge plan to be implemented, to the

extent possible, by residence staff and staff of the resi-

dent’s outpatient program, if any.

(h) Each halfway house shall have at least four full-

time equivalent staff, except that, if there is more than one

staff member residing in the facility, the minimum shall

be three. In a halfway house of more than 16 beds, there

shall be at least one full-time equivalent staff member for

each four beds.