CITY OF PORT ST. LUCIE CITY ATTORNEY. May 7,2013. Order on Reasonable Accommodation Request

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1 CITY OF PORT ST. LUCIE CITY ATTORNEY May 7,2013 James K. Green, P.A. 222 Lakeview Avenue Suite 1650, Esperante West Palm Beach, Florida Re: Order on Reasonable Accommodation Request Dear Mr. Green: Enclosed please find an Oder on the request for a Reasonable Accommodation for a Road to Recovery, pursuant to City Ordinance All of the referenced exhibits are included as attachments to the Order signed by the Interim City Manager, Jeffrey Bremer. Should you have any questions, please contact me at Sincerely, Clt1m~=----- Pam E. Booker Senior Assistant City Attorney PB/liw c. Matthew H. Mandel, Esq. 121 SW Port St. Lucie Boulevard Port st. Lucie, Florida / Fax: 772/ TOO: 772/

2 ORDER ON REASONABLE ACCOMODATION REQUEST OF ROAD TO RECOVERY On September 13, 2012, Road to Recovery ("RTR"), through its counsel, James Green, Esq., requested a reasonable accommodation for 3 proposed (and not constructed as of yet) homes to be located at 555,574 and 582 S.W. Twig Avenue ("Proposed Twig Homes") in the City of Port St. Lucie (the "City"). The location of the Proposed Twig Homes is in a single family zoning residential district. A copy of the September 13, 2012 letter is attached as Exhibit "1." Specifically, RTR sought a reasonable accommodation for the Proposed Twig Homes and its residents from the City's definition of "family" to allow up to 12 unrelated people for each of the Proposed Twig Homes, which would amount to a total of up to 36 people for the Proposed Twig Homes. The City's definition of "family" set forth is as follows: One (1) or more persons related by blood, adoption, or marriage or no more than two (2) unrelated persons occupying the whole of a dwelling unit as a single housekeeping unit. While RTR's September 13, 2012 request to the City for a reasonable accommodation contained considerable citation to legal authority, it did not contain an explanation as to why it was necessary to construct the Proposed Twig Homes as planned (each with six bedrooms) for 12 unrelated individuals to reside together in each home. Specifically, no information was provided to demonstrate that the request was: (i) medically or therapeutically necessary; or (2) necessary in order to be financially viable. Prior to receiving a decision from the City, RTR, on or about December 17, 2012, filed suit in the United States District Court, Southern District of Florida, Case No.: CIV MARTINEZ-LYNCH (the "Lawsuit"). The City moved to dismiss the lawsuit based upon ripeness, and RTR and the City thereafter, on January 29, 2013, agreed to abate the Lawsuit pending RTR's formal application to the City based upon the City's reasonable accommodation procedures and a formal decision from the City. On or about February 22,2013, RTR, through Mr. Green, submitted its formal application to the City for the requested accommodation for the Proposed Twig Homes. A copy of the February 22,2013 application is attached as Exhibit "2." On March 19, 2013, RTR, through Mr. Green, reiterated that it was seeking a reasonable accommodation "for up to 12 residents per home" for each of the 3 Proposed Twig Homes.. A copy of the March 19, 2013 correspondence is attached as Exhibit "3." On March 29, the City sent a request for additional information to RTR pursuant to its reasonable accommodation procedures. The March 29, 2013 request for additional information is attached as Exhibit "4."

3 On April 2, 2013, RTR, through Mr. Green, responded with additional information ("Additional Information"). This document is attached as Exhibit "S." RTR asserted in the Additional Information that the requested accommodation of up to 12 unrelated individuals at each of the 3 Proposed Twig Homes is therapeutically necessary. RTR has not asserted and is not asserting that the requested accommodation is necessary to make the operation financially viable. In support of its therapeutic necessity assertion, R TR attached a declaration from Gary F. Van Arman, LMHC (the "Declaration"). The Declaration asserted that "the clinically optimal size of a residence for people in recovery is a minimum of five patients... " The Declaration also cited the Oxford House model which has a minimum requirement of 6 residents. RTR confirmed at the public hearing on April2S, 2013 that its operation was not an Oxford House. A public hearing, as required by the City's reasonable accommodation procedure was scheduled, by mutual agreement, for April 2S, The hearing was held on April 2S, 2013, and RTR made a presentation through Mr. Green and also presented testimony from Wesley Blackman, RTR's planning consultant and John Ferraro, RTR's president.] No public comment was allowed, and no public input or comment has been considered in evaluating R TR' s reasonable accommodation request. A copy of the transcript from the April 2S, 2013 public hearing is attached as Exhibit "6." In order to properly evaluate the RTR's asserted therapeutic necessity for up to 12 unrelated persons at each of the 3 Proposed Twig Homes, the City retained Dr. Gerald Shulman, a independent licensed psychologist, a Master Addiction Counselor, and a Fellow of the American College of Addiction Treatment Administrators. Dr. Shulman is an author of all three editions of the ASAM Patient Placement Criteria, the ASAM Supplement on Pharmacotherapy for Alcohol Use Disorders and approximately 100 published articles, book chapters, books and assessment instruments~ His areas of expertise are in alcoholism and drug addiction, older adults with substance use disorders, pharmacotherapy for addiction disorders, the ASAM Patient Placement Criteria, co-occurring disorders, evidenced-based treatment, links between substance abuse and child maltreatment, relapse prevention and addiction treatment assessment, documentation and treatment planning. Dr. Shulman offered his opinion on the issue of therapeutic necessity. To properly evaluate and analyze the zoning impacts of the requested accommodation of up to 12 unrelated persons at each of the Proposed Twig Homes, the City also retained Michele Mellgren, an independent planning expert, who has been qualified as such in numerous court cases. Ms. Mellgren has a Masters Degree in Urban and Regional Planning from the George Washington University, is a member of the American Institute of Certified Planners, American Planning Association, and Florida American Planning Association. She has been a guest lecturer at numerous universities and has authored, participated in the authoring, or revised ten city land 1 It should be noted that Mr. Ferraro testified at the April 2S, 2013 public meeting that 12 residents per home was not therapeutically necessary. Rather, he stated that the therapeutically necessary number of residents for each home was 9 or 10. However, neither RTR nor Mr. Ferraro presented any evidence of any of his professional qualifications to demonstrate that he was competent to even render such opinion, which contradicted the opinion of its expert, Mr. Van Arman.

4 development codes and numerous comprehensive plans. She is also the author of numerous articles on urban and regional planning. Ms. Mellgren sought to determine the effect of the proposed accommodation on the integrity of the City's single family zoning scheme. Both Ms. Mellgren and Dr. Shulman were present at the April 25, 2013 hearing and made numerous inquiries from RTR during the hearing. Ms. Mellgren and Dr. Shulman also reviewed all the relevant, applications, additional materials, and documentation submitted to the City by RTR. Based upon all of the documentation, information and presentation provided by and on behalf of RTR, Dr. Shulman analyzed the requested accommodation, and submitted a report in which he offered his opinion as to the number of residents which are clinically necessary to enable the Proposed Twig Homes to achieve its purported goals and objectives. Dr. Shulman's professional and independent opinion is that that number is 5 residents per home. Dr. Shulman also noted that RTR's operation was not an Oxford House model and saw no clinical advantage of 3 houses over a single house. Dr. Shulman's report is attached as Exhibit "7." Based upon all of the documentation, information and presentation provided by and on behalf of RTR, Ms. Mellgren submitted a study of the parking and traffic impact of the requested reasonable accommodation with the proposed 12 residents for each of the 3 Proposed Twig Homes. Ms. Mellgren's report is attached as Exhibit "8." Ms. Mellgren concluded that the proposed accommodation of up to 12 residents for each of the 3 Proposed Twig homes will have.negative impacts on and will significantly change the character of the single family neighborhood in which the Proposed Twig Homes are to be located. In accordance with only the information and documents referenced herein 2, the City will grant the reasonable accommodation request, in part, as set forth below: 1. RTR will be allowed to house up to 5 unrelated persons at each of the Proposed Twig Homes at a time. This was the determination of Dr. Shulman, the independent clinical consultant retained by the City in order to evaluate the therapeutic necessity assertion made by RTR. In addition, this number was acknowledged as satisfactory in RTR's own clinical expert's declaration (contained in Exhibit "5"). 2. No more than one vehicle may be parked at each of the Proposed Twig Homes at any given time. In addition, the vehicles must be unmarked and non-commercial. The restrictions in this paragraph do not apply to delivery companies (such as Federal Express 2 The instant order is based solely upon the documentation, information and presentation from and on behalf ofrtr (as referenced in this order) and the expert reports and opinions submitted by Dr. Shulman and Ms. Mellgren. While Mr. Green, during the April 25, 2013 public hearing, made reference to (and submitted documents concerning) various alleged comments by members of the public or elected officials made during previous public hearings unrelated to RTR or the instant reasonable accommodation request, such comments and documentation were not considered in evaluating RTR's reasonable accommodation request.

5 or UPS) or food delivery providers nor do they apply to licensed contractors that are required to perform building maintenance or related services at the Proposed Twig Homes (such as electrical or plumbing) and have obtained all required permits. 3. The reasonable accommodation granted will cease ifrtr does not complete and submit to the City its applications to obtain building permits for each of the 3 Proposed Twig Homes within 120 days from the date of this order. Furthermore, the reasonable accommodation will cease if RTR does not obtain a certificate of occupancy for each of the Proposed Twig Homes within I year from the date building permits are issued for the Proposed Twig Homes. 4.. The reasonable accommodation is granted only to RTR, and it is not transferrable to any. person or entity. The reasonable accommodation granted will cease if RTR sells, leases or no longer uses the Proposed Twig Homes to provide housing for persons in recovery for a period of 90 days after certificates of occupancy have been issued for the Propsoed Twig Homes. 5. Along with this Order, RTR must comply with all other City ordinances, and life safety codes, the violation of which could potentially lead to the revocation of the instant accommodation.

6 J AMESK.G REEN, P.A. JAMES K. GREEN LAWYERS SUIT.E 1650, ESPERANTE' LAKEVIEW AVENUE WEST PALM BEACH, FLORIDA FACSIMILE September 13, 2012 Gregory J. Oravec.city Manager/CRA Director City of PQrt St. Lucie City Hall.121 S.W. y'ort St. Lucie Blvd. Port St. Lucie, FL Re: Request ADArFHAA Reasonable Accommodation for A Road. to Recovery. Dear Mr. Oravec: I i-epresent A Road to Recovery, a Florida limited liab11ity company that provides treatment to people in recoveri.. A Road.to Recover/s'address for its trea:'onent component is 6971 Heritage Drive,.Port Saint Lucie, Florida. Vincent Mongno, Ruth LeConte, and Paul Materia, supporters of A Road to Recovery, :own homes with' SIX bedrooms each at 555, 574,. and 582 S..\II 1. Tw~g Avenlle in the City. of Port St. Lucie. These homeowners want to provide housmg to persons receiving treatment from A Road to 'Recovery, which means groups of :jilore than two.lu"ll.'elated people will live together as sober Jiving families. The. residents will receive substance abuse u'eatment off premises. A Road to Recovery's community housing for 'people in recovery at the above-referenced addresses will be called the Twig Avenue Homes.. This letter is to request a reasonable accommodation for Twig Avenue Homes and its' Tesidents froin the City definition of "family" to allow up to 12 unrelated people.(two per bedroom) in recovery to.live at the Twig Avenue Homes: FAMILY. One (1) or more persons related by blood, adoption, or marriage or no' U1,Ore than two (2) unrelated persons occupying the whole of a dwelling unit a,s a sing;le housekeeping l1ni~... Sec , Definitions,J>ort S1. Lucie Zoning' Code; This reasonable accommodation is necessary because the dwellings will consist of up to 12 unrelated recovering.persons pe~ residence, and tlie City's "family" definition prohibits more. than t\rv'o persons, not related by blood, marriage or adoption, from.residing in a single residential, _ t... :'./~:~~f#~j.,,: > EXHIBIT I

7 dwelling unit. 1 The Twig Avenue households will function as the equivalent of single families, and will allow the recovering persons to provide one. another with continual mutual support as well as mutualmonitoring to prevent relapse?. A. Recovering People Are Considered Disabled and Entitled to the Prote~tions of the FHA and ADA In 1988., Congress ameiided the Fair Housing Act ("FHA") to include people with disabilities as a protected class, including people inrecovery :fiom alcohol or drug abuse. 42 U.S.C. 3601, et. seq. The FI-IA isa "clear pronouncement of a national conmlitment to end the unnecessary exclusion of persons with handicaps from the American mai.nstream." H.R. Rep. No. 711, 100th Congo 2d Sess. 18, reprinted in 1988U.S.C.CA.N. 2173, 2179 (hereinafter IIHouse Report"). Furthermore, this law "is intended to prohibit the application of special requirements through land-use regulations... that l1ave the effect of limiting the ability of such individuals to live in the residence of their choice In the commmuty.11" House Report at 2185 (emphasis added)~. To accomplish these objective$, Congress pr()vided that discrimination covered by the Act includes, aniong other practices: a refusal to make oreasonable accol"rn.odations ;" rnles, policies, practices, or services, when such accommodations may be neces~ary to afford [h:;l11dicapped persons] equal opportunity to live and enjoy a~dwelling.. 42 U.S.C (f)(3)(b) quoted.incity of Edmonds Il. Oxford House, Inc., 514 U;S. 725 (1995). As Congress explained, this provision means that certain practices. are no longer defensible simply because that is flow business has always been conducted:. A discriminatory rule, policy, practice or service ~s not defensible simply because that is the manner in Vo?'hich such rule or practice has traditionally b.een constituted. This section would Tequire that changes be made ~o such traditional rules or pra9tices if necessai-y to permit a person with handi.6aps an equal opportunity to. use and enjoy a dwelling. House Report at '... Tl~eAmericans with Disabilities Act ("ADAI1),42 U,S.C ~ et. seq., was enacted in 1990 as a.comprehensive Congressional mandate to eliminate discrimillation against people with disabilities. Title II of the ADA provid.es that IIno qualified individual with a disability shall, by 1 The Port St. Lu~ie Zoning Code contains n; restriction 011 the number of persons related by blood, adoption, or marriage occupying the whole of a dwelling unit as a single houseiceepiilg UlUt. 2 The proposed l:esidences are.llo~ Congregate Living Facilities, because they are not restricted to the elderly or licensed by the state, OT Community Residential HODies, because they will Dot be licensable under Chapter 41.9, Fla. Stat. 2

8 reason of such disability, be excluded from pmti.cij:mtion 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 additiol1, Tegulations promulgated under Title II require that public entities "administer services, programs, mi.d activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. 3S.130(d). Like the FHA's reasonable accommodation mcll1date, the ADA regulations also require th.at public entities "make reasonable modifications in policies,practices, or procedures when the modifications are ' necessary to avoid discrimination on the basis of disability, l:inless [it] can demonstrate that making the, modificati.ons would fundamentally alter the nature of the service, program or activity." 28 C. F. R. 35.l30(b)(7). The City's application of its "fmllily" definiti~n to the proposed TWlgAv~nue Homes 3 and refusal to grant a reasonable accommodation would constitute unlawful discl~imination under the ADA and FHAA thereby SUbjecting it to significant liability 811d exposure to considerable damages m1d attorneys' fees and costs. Se'e Jeffi-ey 0. v. City of Boca Raton, 511 F.Supp.2d 1339 (S.D. Fla. 2007) (defense firm paid'in excess of $500, for unsuccessful defense; plaintiffs', counsel awardedin excess of $600,000.00); Tracey P., et al. 11. Sarasota County, etal.; Case No. 8:0S-CV-927-T-27EAJ (M.D. Fla.) (COlmty paid outside' defense' fum $3.2 million for unsuccessful defense; plaintiffs" counsel paid in excessof$qoo,ooo.oo)., See also, Idaho developer wins,$4m' judgment over teen center; -.,. ~. ~. T ~ J. I Judgmellt.html#storylm k=ii1il'elated (BOlSe COUD:t"y C01Ii1rUSSlOUers ViOlated the 1:' arr Housmg ACT when theyunderrrrined fueproposal because of neighborhood opposition)" Underthe AbA and FHA, local governinents are explicitly prohibited from administering zoning procedures in a m~er :that subjects persons with di.sabilities to,discrinrination. on the. basis of their disability. Innovative Health Systems, Inc. v,. City,of White Plains, 117 F. 3d 37 (2nd CiT. 1997);. 42. U.S.c ("an.y law of a State, a political subdiv~sion, or other jurisdiction.t;b.at purpor,ts to,.:!-"equire or permit any action that would be a discriminatory housing p'ractice Unqer this subchapter shill to that extent be invalid [under the Farr Housing Act]"). In addition, the ADA and FHA,also require suchentities to :i.mikereasonable accoinmodations for people with disabilities. 42 U.S.-C (2); 42 U.?C. 3604(f)(3)(B).3', 3'.'. '" ",, Treatment and housing providers such as A Road to Recovery 811d its supporters have standing to raise the FHA 811d ADA'rights both of themselves and their patients. Andrews v. State o.f Ohio, 104 F. 3d 803, 807 (6th Cir. 1997); Bay Area Addiction Research and Treatment, Inc. v. City of Anti.och, 179 F. 3d'725, 731 (9th Cir. 1999); I~novative Health Syst-ems, Inc. v. City ofvvh.ite Plains, 117 F. 3d 37, 44-6 (2nd Cir. 1997); Addiction Specialists, Inc. v. Township. o.f Hampton,411 F.3d 399,. 407 (3d Cir.2005) (methadone clinic providers may assert both direct standing based on theirowll injuries and associational standing based on injuries to the disabled individuals they serve). This is because the enforcement provision of the ADA broadly refers to, "any person," not solely disabled,individuals. Gf Helen L. '11. DiDario, 46 F.3 d 325, 331 (3 d " Pr.199)) (characterizing overall language in Ti~le II of thy ADA as "broad").. 3 Oco?wmowoc Residential Program.s v. City ojmilwaukee, 300 F.3d 775, 782 (7t~ Cir. 2002) (lithe reqli.irements for reasonable ~ccomll1oda~ion under the ADA are the sanle as those. l.1l1der the FliAA");Bay Arc~a Addiction R.esearch and Treatment, Inc. v. City o.f Antioch, 179 3

9 People.with disabilities, or their lteatment providers, may bring three generai types of claims :under the ADA and FHA: (1) intentional discrimination daill1.~ (also called disparate treatment claims); (2) disparate impact claims; and (3) claims that a defendant refused to make. IIreasonable accomm.odati.ons." Oxford House - Evergreen v. City of Plainfield, 769F. Supp (D. N.J. 1991).. B. Alcoholism and D~ug Addiction Are Lifetime Diseases. As you may be aware, alcoholism and drug addiction are lifetime diseases. They are cmollic, progressive and sometimes fatal. Avoiding' relapse and progressing in recovery are therefoie the most important aspects of a recovering addict1s life. Jeffrey O. v. City of Boca Raton., 511 :f. Supp. 2d 1339, (S.D. Fla. 2007) (group home residents who were recovering alcoholics or drug' addicts held to be disabled under the Fair Housing Act).. See, f!.lso, City ofedm077.ds v. Washington State Buildin.g Code Council,'514 U.S. 725 (1.995); Sulliv~n v.. City of Pittsburgh, 811 F.2d 171, 182 (3d. Cir.l987) ("Case law establishes that alcoholics are harrdicapped within the meaning of [the Rehabilitation Act].") Legislative history also SUppOlts this conclusion. See H. R. Rep. No (II), at 51 (1990), reprinted in 1990 U.S.C:C.A.N. 303; 333 (noting that Ilphysical or mental irnpairmene includes II drug addiction and alcohop.sm ll ) (inter~al pul1cw~tion omitted).. c. P~ople in ReCOVhy Need Sober Housing. For. recovering. alcoholics and addicts,:futcling and' staying in a healthy,- functional envij.-onnient that provides mutual support an,d monitoring, surrqunded by people. who' are ~10t using' alcohol or drugs, and' awayfrorn people arid situations that previously triggered or.. supported.substance use are essential e1ements to avoiding relapse. Furthe~, sharing a corn:ri::lon. -household :With other Te~oyer.in,gpersons and fu,ncti9nink as a family.household is an, -integral p~t of the recovery" process.". Research 'shows that persons recovering from addiction are far more often successful. when living in a household, with at least four other persons in recovery, particularly in the early 'stages of recovery. Baicing Hiore than follr umelated individq.als from residing together, without regard. to the size of the residential ill1it, interferes with the critical mass of individuals supporting each other in recovery. Further, itredllces the chances' that a person in recovery-will be. alone by. him or herself. Many persons in recovery cajjnot maintain the traditismal faniily o'rganization that the Citis ordinance dictates. The family deflnition ordiilclllce, therefore, discriminates against groups. of pel's~ns, such as the Twig Avenue Tesident~, who are unrelated. In addition to_ the F.3d 725, 731 (9th Cir.1999) (noting that Congress has instructed that both acts are to be interpreted consistently). Generally the same principles governing interptetation of the ADA apply to the FHAA and vice versa... 4

10 actual discrimination against these residents of the City: the family definition ordinance has a dispamte impact on them by preventing them.from living together in drug and alcohol-free housing units. The potential recovery of people who are handicapped or disabled by reason of alcoholism or drug abuse is greatly enhmiced by the mutual support and mutual monitoring. provided by living with other' recovering persons. Further, it is often critical that.a person in the early stages of recovery share a bedroolll with another recovering addict for mutual support and monitoring. The Citis restrictions on groups that do not meet its "family" definition effectively pro~libit these. types of living arrangements in large, six bedroom homes' such as Twig Avenue H.omes. D. The City Also Has a Duty to Grant A Road to Recovery and Its Supporters a Reasonable Accommodation. Even if con~unity homes' f~r people. in reco~ery such as Twig Avenue Homes are severely restricted or excluded ina particular zonlllg district, public officials have an affirmative' duty to waive or modify the rule as a "reasonable modification ll under the FHAA or Title II of the ADA. See generally, Srnith.-Berth v. Baltimore County, 68 F.Supp. 2ei 602, 621 (D.Md. 1999);28 C.F.R. 3S.130(b)(7). The Maryland.Court' of Appeals has specifically imposed this affirmative duty on zoning officials in Matyland, Who are empowered and specifically directed to con~ider and provide a:""r",.,-.,-v> ",,=1.,+;"'... n "... ;lo~ '+1~6 11 n' A. nd~; ~.1...":"..l~.!.-'.._..:1.: p '1' C <>ti"""'s rlmust'j m'" ire' vvv.u.u...lj.v... t.lw.~.i..u:i LLUU.v.l Ulv- rj..jjl'l.. J.jYC;.l)'UUli)' lilvuivtju Willi U 1.Lll "TT;... V.1. '. LLJ.'- 'reasonable accommodations to the disabled." Mastandrea v. North, 361 Md. 107, 119 n. 11 (2000) (emphasis.ad.ded) (approvlng GOunty board1s' decision to set aside local zoning' requirements to accommodate a disabled individuallg needs and agreeing that public officials hiwe a duty' to consider ~ccommodations when requested).. " AccommodatIons or.modifications required. by the ADA. are wide-ranging.. Accommodations can include, but are not limited to, relaxing or not enforcing a zo:rillig rule, waiving a policy, granting a use variance or special' exception, construing 'a provision in the code favorable to the' applicant~treating a use as permissible, and making other types of exceptions. See" e.g., Hovsons, Inc. v. Township of Brick, 89 F.3d 1096,1104 and 1106 n. 5 (3d Cir. 1996). (accommodation was not to enforce a zoning rule that would have excluded a nursing 'home from a Tesidential zone); Horizon:Ho~se Developmental Svcs. v. Upper' Southampton,.804 F.Supp.. 683, 699 (B.D. Pa. 1992) (accommodation was to refrain from enforcing spacing requirement for group home); U S. v, City of Philadelphia, 838F Supp. 223, (B.D. Pa:.1993)., (accommodation was to waive yard/lot size requirements for shelter); North Shore-Chicago Rehabilitation,177,c. v. Village ofskolde, 827 F. Supp~ 497,502 (N. D.IlL 1993) (accommodation was to waive licensing and occupancy requirements of zoning ordinance. for rehabilitation center); Oxford House v. City of-plainfield, 769 F. Supp. 1329, 1344 (D. N. J. 1991) (accommodation is to' treat luu'elated group home residents as if they were a "familyl1); Regional Economic Com.munity Action. Program., Inc. v. City of 1I1iddletown., 294 F.3d 35 (2d CiT. 2002) (waiver or modification of r~les prohibiting elevators in buildings where this would prohibit certain people frq.m residing in the buildings is a reasonable 'accommodation under the statute); OconolnC?woc Residential Programs v. City of Milwaukee,. 300 F.3d 775 (7th CiT. 2002) (a 5

11 varimice from the distance restrictions for the operation of. group homes would be a reasonable 'accommodation und.er the ADA). " Here, even, if the' City determined. that Twig Avenue Homes would be in violation of its "family" definition, it should reasonably accommodate Twig A venue Homes by determining 111at :under the facts presented, Twig Avenue Homes should be granted a reasonable accommodation,from the family ordinance and be deemed a permitted use for up to 12 umelated persons in recovery.' E. The City May Also 'Be.8ubject to Liability for Failing to Have 'a Reasonabl~ Accommodation Procedure for Zoning Matters.. As a public entity covered by Title II of the '-ADA, the City was required topr~pate a self,. evaluation plan in accordance with 28 C.F.R , malce alteratiollsto its zoning laws in order to comply with Title Irs program accessibility requirement, and also prepare a transition,planinaccordancewith28 C.;F.R. 3S.1S0(d)(3). Tylei-v. Cityofll{fanhattan, 849F. Supp. 1429, 1435 (D. Kan.1.994); Concerned Parents to Save Dreher Park Center 'V. City of West Palm,Beach, 846 F.Supp. 986, 893 (S.D.Fla.1994) (enjoining City to irnniedi8.tely begin to take steps to corrw1y with and conclude with all due, 'speed. its compliance with the requirements of 28 C.ER : and , relating to [ADA] self-evalu,ation, notice and designation of responsible employee and adoption of grievance procedures)., On Information ajid belief, the City never prepared suc;;h plans that address~d zomng for providers 'or people with disabilities: Had it done so, the' City likely would have prepared a reasonable accommodation procedure applicable to zoning requests suc4 as this. See Jeffrey 0. v. 'Ciiy of Boca Raton, 511 F. Supp.2d 1339 (S~D. Fla. 2007) (City held to have,violated the Fair Housing Act because,in'part, it never established a reasonable accorn.:rd.odation 'procedure for people with disabilities). CONCL.USION Please "let me kno~ as soon as possible whether the City would be willing to grant the accommodation requested herein and issue, the building permits. I request a response, by September 20; Thank you for'your anticipated'cooperation. cc: Pam E. Booker, Senior Assistant City Attorney, 6

12 Pam Booker From: Sent: To: Subject: Attachments: James Green Friday, February 22, :06 PM Pam Booker FW: A Road to Recovery's reasonable accommodation request Road to Recovery RRA Final. pdf From: James Green Sent: Friday, February 22, :03 PM To: 'pbooker@cityofpbi.com' Cc: 'jbremer@cityofpsl.com'; 'Matthew H. Mandel' Subject: A Road to Recovery's reasonable accommodation request Dear Mr. Bremer: Attached please find A Road to Recovery's reasonable accommodation request. James K. Green, Esq. JAMES K. GREEN, P.A. Suite 1650, Esperante 222 Lakeview Ave. West Palm Beach! FL Telephone: Facsimile: jkg@jameskgreenlaw.com jameskgreenlaw.com ~Please consider the environment before printing this . NOTICE: This electronic mail transmission from the law firm of James K. Green, P.A. may constitute an attorney-client communication that is confidential and privileged at law. It is not intended for transmission to, or receipt by, any unauthorized persons. If so, any review, dissemination, or copying of this is prohibited. If you. have received this electronic mail transmission in error, please delete it from your system without copying it, and notify the sender by reply e~mail, so that our address record can be corrected. Incoming s are filtered which may delay receipt. u.s. Treasury Regulation Circular 230 requires us written communications issued by us are not intended relied upon to avoid penalties that may be imposed by Service. to advise you that to be and cannot be the Internal Revenue Pam E. Booker Senior Assistant City Attorney 121 S.W. Port St. Lucie, Boulevard Port St. Lucie, FL (772) EXHIBIT 1.

13 Reasonable Accommodation Request Form 1. Name of Applicant: A Road to Recovery, LLC, a Florida limited liability corporation, Vincent Mongno, Ruth Leconte, and Paul Materia, on their own behalf and on behalf ofthdr patients and residents. Telephone Number: Address: A Road to Recovery, 6971 Heritage Drive, Port St. Lucie, FL. 3. Address of housing or other location at which accommodation is requested: 555, 574 and 582 S.W. Twig Avenue, Port St. Lucie, FL. 4. Describe qualifying disability or handicap: Active recovery from substance abuse. Chemical dependency is considered a medical disease formally recognized as such by the American Medical Association in Recognition of a disease implies several factors, including that the disease can be described; the course of the disease is predictable and may be progressive; the disease is primary arid not an underlying symptom of a disorder; the disease is permanent; and the. disease is terminal if left untreated. Alcoholism and drug addiction are lifetime disabilities. They are chronic, progressive and sometimes fatal. Avoiding relapse and progressing in recovery are. therefore the most important aspects of a recovering addict's life~ For recovering addicts, finding and staying in a healthy, functional environment that provides mutual support and monitoring, surrounded by people who are not using alcohol or drugs and away from people and situations that previously triggered or supported substance use, are essential elements to avoiding relapse. This disability "substantially limits" one or more "major life activities." Alcoholism and drug addiction are considered disabilities under the Fair Housing Act. Both Congress and the u.s. Department of Housing have made it clear that recovering addicts are included in the defmition of "handicapped." The courts also support this construction. 1

14 Since clients of A Road to Recovery ate recovering from substance abuse addiction and/or alcoholism, they are specifically included within the definition of "handicapped individual." See 42 U.S.c. 3602(h) and 24 C.F.R (a)(2). See also City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995). A Road to Recovery's residents are "disabled," i.e., recovering alcoholics and substance abusers, as that term is defined in 24 C.F.R and (28), Fla. Stat., and are "handicapped" as that term is defined within 24 C.F.R ("Handicap means, with respect to a person, a physical or mental impairment which substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment."). A Road to Recovery provides "recovery support" as that term is defined by (29), Fla. Stat., to these "handicapped" persons wl).o are in "recovery." As individuals in recovery from alcoholism and substance abuse, present and prospective residents of these residences seek to live in a family-type environment which would provide them with emotional and therapeutic support during the recovery process. The residents are individuals who cannot live independently without the fear or threat of relapse into active alcoholism and substance abuse. By living together as the "functional equivalent of a traditional family" and by living with other persons who are in recovery, they never have to face an alcoholic's or addict's deadliest enemy: loneliness. The residents of the Property are expected to adhere to Rules and Regulations which govern their conduct. There will be no children living at the Property; the minimum age for residency is 18 years old. None of the residents will have vehicles, so there will be no additional traffic or parking burden on the neighborhood. Based upon years of experience and upon the professional opinions of experts in the field, it is essential that these individuals, new in recovery, live (' together with others who are abstaining from drugs/alcohol, including sharing a 2

15 bedroom. A critical. factor in this environment is that it is structured in a manner that will encourage and facilitate residents' daily participation in a personal program of recovery, as well as the recovery community in general. It is also essential that this environment limits isolation from others in recovery to prevent imminent return to active addiction. By living with others, residents have continuous assistance to identify, confront and/or resolve problems and issues before they can lead to a possible relapse. 5. Describe the accommodation and the specific regulation(s) and/or procedure(s) from which accommodation is sought: The Twig Avenue Homes are zoned Single-Family Residential Zoning District (RS-2). This means that the Twig Avenue Homes are located in a single-family neighborhood where there are no limitations on the number of people who can live together who are related by blood, marriage, or adoption. However, limits are placed on the number of unrelated people who can qualify as a "family" and, therefore, share a residence. Section , Definitions, Port St. Lucie Zoning Code, provides the following definition of a family: FAMILY. One (1) or more persons related by blood, adoption, or marriage or no more than two (2) unrelated persons occupying the whole of a dwelling unit as a single housekeeping unit. 6. Reasons the reasonable accommodation may be necessary for the individual with disabilities to use and enjoy the housing or other service: The requested accommodation is necessary to achieve an opportunity for the disabled residents of these residences to live in a setting which is a self-paced recovery option and gives them sufficient time for personal psychological growth while avoiding the use of alcohol and other substances. Absent the sobriety setting, the individual residents of these residences would not be able to live in a supportive 3

16 environment in a residential area, let alone a single-family residential neighborhood. Alcoholism and addiction are one of the few known diseases to feed off isolation. While in recovery, addicted persons learn from counselors, therapists and clinical staff regarding the nature of their disease, as well as probe into and process, as a group, each individqal' soften painful life issues and experiences that may be contributing factor(s) to his or her addiction. A crucial part of the group therapy process is clients' support of one another in many ways. Whether it be painful issues brought out in group therapy or the emotional outcome of a client's possible individual session with a counselor, constant contact with another person in recovery is vital to achieve long term sobriety and avoid relapse, which in many cases is fatal. Because addiction is a disease that centers in the mind, the greater the time an addicted person, especially one just beginning recovery, is alone, the greater the potential for the disease to take hold of the person's thinking and trigger negative thoughts. Being around other people who are struggling to avoid negative thoughts themselves can help interrupt those thoughts before the person spirals into negativity. The recognized therapeutic intervention for this situation is for clients in treatment to live in a larger therapeutic community with other persons seeking recovery, both in the larger group housing setting and in the relative privacy of one's sleeping space. The latter objective is why the Oxford House model recommends two persons in recovery per bedroom, especially during the early stages of recovery. 1 1 "There are three reasons Oxford House encourages more than one to a room. First, newcomers maintain recovery better with a roommate. Loneliness continues to be a threat to sobriety and loneliness can be a problem for the newcomer adjusting to a new place to live. Second, the number of people living in a House directly affects the economics of an Oxford House. The more people who live in a House the less each member has to pay for the House to 4

17 Clients at A Road to Recovery spend the majority of their day in a large group therapy environment at a separate location. As they (the group) learn from the clinical staff that facilitates each group, they are not only learning together but also learning from one another. As topics are discussed, each group member shares feelings and experiences with the larger group. This sharing of feelings and emotions is not only a catalyst, but also the binding agent, for a bond of caring and trust with one another, similar to the bond that some war veterans or catastrophe survivors experience. A bond of trust and support is attainable where each client understands that the other group members have been through the same experiences and feel the same feelings and emotions. This type of group bonding and camaraderie provides clients with 'a tremendous amount of support for one another. Though no therapy is provided in A Road to Recovery Community Housing, a client's emotional processes and/or possible emotional fallout do not stop upon leaving the counseling center and returning to community housing. Frequently it is quite the opposite. Often it is the case that upon leaving the clinical setting for the more "home like" and relaxed setting of community housing, a person may begin to re-process the events of the day, at which point it is vital to have other group members on hand for support in a positive recoveryoriented direction. One of the greatest dangers to this recovery process is where there are too few people, especially people new to recovery, living together in a supportive environment. If only six people are living together in a recovery housing setting, and perhaps due to the topic, of the day in the group therapy process, the majority - say, for example, four people - are emotionally distraught and vulnerable, the minority of two is not sufficient to provide positive support to the majority in need. A Road to Recovery's entire program was designed around be self-supporting. Third, roommates discourage having non-house members spending the night at an Oxford House.'' Oxford House Manual, p.7. 5

18 this therapeutic modality of treatment, and it is clinically necessary for our clients (the group) to live together as a sizable family of roommates to provide maximum group support, to ensure maximized recovery and the best possible therapeutic atmosphere. The long standing phrase in recovery programs around the world is: "We can do together what I cannot do alone," and our treatment program is a reflection of this fact. Residency in these homes will provide a useful and often essential public service by providing a safe and sober living environment, so that the residents can be reintegrated into society and the workforce as productive useful members. This medically-recognized healing system is not only supported by the Florida Legislature, but actually serves as the stated basis for the creation of the "Hal S. Marchman Alcohol and Other Drug Services Act," which provides, in part: [Section] , [Fla. Stat.] Legislative [mdings, intent, and purpose.- (l) Substance abuse is a major health problem that affects multiple service systems... Substance abuse impairment is a disease which affects the whole family and the whole society and requires a system of care that includes prevention, intervention. Clinical treatment. and recovery support services that support and strengthen the family unit. Further, it is the intent of the Legislature to require the collaboration of state agencies, service systems, and program offices to achieve the goals of this chapter and address the needs of the public; to establish a comprehensive system of care for substance abuse; and to reduce duplicative requirements across state agencies. This chapter is designed to provide for substance abuse services. (emphasis added). A request for accommodation to the definition of "family" is therefore necessary for the present and future residents of these residences "to enjoy the housing of his or her choice." 6

19 7. Name, address and telephone number of representative, if applicable: James K. Green, Esq. James K. Greenj P.A. Suite 1650, Esperante 222 Lakeview Ave. West Palm Beach, FL Telephone: Other information: There will be no staff on site Signature of disabled individual or representative, if applicable, or qualifying entity: Paul Materia, Vice President A Road to Recovery, LLC DATE: February 22,2013 7