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Rocky Top, LLC v. City of South Amboy

September 11, 2012


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5068-06.

Per curiam.


Argued: March 28, 2012

Before Judges Axelrad, Sapp-Peterson and Ostrer.

Plaintiff Rocky Top, LLC appeals from summary judgment dismissal of its eleven-count complaint against the City of South Amboy (the City), the City's Mayor John T. O'Leary, Jr. (the Mayor), and the City's Zoning Board of Adjustment (Zoning Board), involving property plaintiff purchased within the City. The property had been the site of a hospital, Memorial Medical Center (MMC), which had operated as a pre-existing nonconforming use and closed in 1999. In 2000, the City investigated the site for redevelopment under the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -49, and ultimately passed a resolution adopting a Redevelopment Plan, which included the property. Plaintiff alleged in its complaint that it encountered many roadblocks from the Mayor and City in seeking to lease the property for use as a pharmacy, a children's daycare center, an eldercare facility, and a drug and alcohol rehabilitation treatment facility, constituting violations of the following federal and state laws: the LRHL; the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163; the Fair Housing Act, N.J.S.A. 52:27D-301 to -329, and the federal Fair Housing Amendments Act of 1988 (collectively FHA), 42 U.S.C.A. §§ 3601 to 3631); the Americans With Disabilities Act (ADA), 42 U.S.C.A. §§ 12101 to 12213; the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C.A. §§ 701 to 796; § 1981 of the federal Civil Rights Act (CRA); and constitutional guarantees of due process under § 1983 of the CRA. Plaintiff also challenged the Zoning Board's interpretation, affirmed by the trial court, that the proposed use of the property for a drug and alcohol treatment facility was not a permitted use under the Redevelopment Plan, and asserted procedural deficiencies. We affirm in part, and reverse and remand in part.


This case emanated from plaintiff's application to the City's zoning officer for zoning permits to allow certain uses within the property, which were initially issued but subsequently revoked. Plaintiff filed a complaint against the City in 2004 seeking to invalidate a payment in lieu of taxes agreement.*fn1 Plaintiff filed a first amended complaint in 2005, which added causes of action alleging wrongful conduct by the City and the Mayor, challenging the validity of the Redevelopment Plan and asserting damages under both state and federal statutes for alleged discriminatory and unconstitutional conduct. In 2006, pursuant to court orders, plaintiff, joined by plaintiff-intervenors, Endeavor House, Inc. (Endeavor House) and its affiliate Recovery Centers, LLC (Recovery Centers), tenants in the property, filed a second amended complaint.*fn2

By order of January 24, 2007, the court denied plaintiff-intervenors' motion for partial summary judgment without prejudice, and remanded the matter to the Zoning Board, finding it was an appeal of the zoning officer's initial decision regarding their proposed tenancy. Plaintiff-intervenors then filed an application with the Zoning Board for an interpretation pursuant to N.J.S.A. 40:55D-70(b). The application sought an interpretation that their proposed "residential drug and alcohol rehabilitation facility," which they viewed as "long term healthcare," would be considered a permitted use under the Redevelopment Plan that controlled the site.

Following a hearing on May 9, 2007, the Zoning Board held the proposed use was not permitted under the Redevelopment Plan. It issued a resolution memorializing its decision on June 13, 2007.

Meanwhile, plaintiff and plaintiff-intervenors filed their eleven-count third amended complaint alleging the following causes of action: declaratory judgment that its proposed uses were permitted (count one); LAD violations (count two); MLUL violations (count three); procedural due process violations (count four); ADA violations (count five); Rehabilitation Act violations (count six); § 1983 due process violations (count seven); FHA violations (count eight); CRA violations (count nine); inverse spot zoning (count ten); and seeking relief in lieu of prerogative writs to reverse the Zoning Board's decision (count eleven).

The court scheduled trial solely on the prerogative writs count of the complaint. By letter of July 8, 2008, plaintiff-intervenors advised the court they would withdraw from the litigation as to all counts other than the prerogative writs count (eleven). On September 18, 2008, the court heard argument on the issues raised by that count. On December 8, 2008, the court issued a written decision and order dismissing counts one (declaratory judgment that the proposed uses were permitted) and eleven of the third amended complaint with prejudice. Specifically, the court affirmed the Zoning Board's decision that Endeavor House's proposed use of the property was not a permissible use under the Redevelopment Plan. The court concluded: (1) the use was "more akin to a halfway house than a long-term care facility"; (2) if the [Redevelopment] Plan were "intended to permit a drug and alcohol treatment facility, the governing body would have so stipulated" since the conditions imposed by the ordinance delineating a B-2 zone where such use is conditionally permitted "differ significantly" from those at the subject property; and (3) the proposed accessory use was a mental care facility, which was expressly excluded in the Redevelopment Plan.

Plaintiff moved for reconsideration, and the court heard argument on the motion on January 23, 2009. The court denied the request as to count eleven and clarified its decision as to the first count, "leav[ing] the count in place" pending further discovery but limiting the relief requested to "[a]lternatively declaring that the Redevelopment Plan is null and void and its provisions [have] no force or effect in relation to the uses made of the Medical Center Property" and "[a]warding such other relief as the Court deems equitable and just." An order was entered on June 19, 2009, which also formalized the dismissal of the complaint as to plaintiff-intervenors.*fn3

By order of April 2, 2009, the court denied plaintiff's motion seeking its recusal. In July 2009, defendants moved for summary judgment to dismiss the balance of plaintiff's complaint, enclosing a statement of material facts and ninety-nine exhibits. Plaintiff filed a response to defendants' statement of material facts, a counter-statement of material facts, and a certification enclosing twenty-two exhibits. The City submitted a letter brief in reply. Oral argument on the summary judgment motion was presented over three days on September 18, October 7, and November 4, 2009.

In November 2009, plaintiff also filed a motion to compel testimony from Francis X. Gartland, the Mayor's business partner in Dynamic Claims Management (Dynamic). A consent order was entered on December 4, 2009, scheduling depositions of Gartland and of Noreen Petersen,*fn4 a Dynamic employee knowledgeable about its records, which were conducted in December.

On or about January 25, 2010, plaintiff filed a "Supplemental Counter-Statement of Material Facts," referencing and enclosing transcripts from the December 2009 Gartland and Petersen depositions, and from the earlier dates of Gartland's deposition, including one exhibit identified at one of those earlier dates. The court returned a "document" to plaintiff's counsel "unread by the court," noting the summary judgment motion had been argued over three days, those motions were "only pending decision and order," and the status did not require additional submissions. The next day, likely without having seen the judge's letter of the previous day, defense counsel wrote to the clerk's office seeking to strike plaintiff's supplemental papers.

On February 8, 2010, the court issued separate orders as to the Mayor and the City granting their summary judgment motions and dismissing the complaint in its entirety with prejudice, with identical findings of fact and conclusions of law appended to the orders. This appeal ensued.

On appeal, plaintiff argues the court erred in granting summary judgment dismissing each count of its complaint, contending significant discovery was incomplete and there were numerous material disputed facts, and challenging various of the court's factual and legal conclusions. Plaintiff also claims the trial judge erred in denying its motion for recusal. Defendants contend plaintiff failed to exhaust its administrative remedies and timely challenge the designation of the MMC property. We reverse and remand as to counts eleven and one (prerogative writs and declaratory judgment as to Endeavor House's proposed use), count two (standing to assert a LAD claim for economic loss of the Endeavor House lease) and count eight (plaintiff's standing to assert an FHA claim for economic loss of the Endeavor House lease). We affirm summary judgment dismissal as to the other counts of the complaint.


Plaintiff is a New Jersey limited liability company whose members are Andrew Piscatelli (Andy) and his son Andrew Piscatelli (Drew) (collectively, the Piscatellis).*fn5 The Piscatellis are also the principals of Highland Plaza, Inc. (Highland), a New Jersey corporation.

Prior to August l999, the MMC operated on the subject property, 540 Bordentown Avenue, designated on the City Map as Block 89, Lots 3, 4, and 5. The property was located in the "RA Residential Zone." It is undisputed the MMC's use of the property as an operating hospital enjoyed the status of a pre-existing nonconforming use. Prior to the hospital's closure, it provided a variety of services, including a substance abuse treatment center and a mental health clinic. It also contained a gift shop, a pharmacy, and a cafe, which were open to the public. Pursuant to zoning board approval, the MMC additionally contained two separate residences on its property, which in 2001 were used for office and administrative activities relating to the hospital.

The Mayor joined the MMC's Board of Directors in 1998 or 1999, when he was asked to assist in saving the hospital from closing. Despite the Mayor's efforts, the State licensure for the hospital was terminated and the hospital closed in 1999. In time, the MMC entered Chapter 11 bankruptcy proceedings, and efforts to sell the building began. The Mayor knew another entity, the Kelly Organization, had also expressed interest in acquiring the MMC site for medical arts and senior citizen assisted living uses before the Piscatellis inquired about the site. According to the Mayor, although the Kelly Organization was interested in purchasing the building, he had been supportive of the Piscatellis because they were more specific about their plans for a medical arts building on the site.

On October 4, 2000, the City Council adopted a resolution authorizing the Planning Board to investigate the MMC site to determine whether the site was in need of redevelopment under N.J.S.A. 40A:12A-6. On October 26, 2000, a Redevelopment Area Report was prepared by the City's Zoning Officer, Angelo J. Valetutto, P.P., of AJV Engineering, Inc., and amended on March 19, 2001. The planner concluded the property met the LRHL criteria for redevelopment. With notice before and afterwards, the Planning Board conducted a public hearing on November 20, 2000, and determined the property met the criteria and requisites for a Redevelopment Area. On December 20, 2000, the City Council enacted a resolution approving and adopting the report and recommendation of the Planning Board. With notice before and afterwards, the Planning Board adopted a resolution on April 25, 200l, recommending that City Council determine the property be designated as a Redevelopment Area. By resolution of May 2, 2001, the City Council designated the property as an "area in need of redevelopment."

On February 28, 2001, Highland executed an agreement to purchase the subject property through the Bankruptcy Court, which sale was approved by order of May 15, 2001. In March, Drew sent a letter to the South Amboy Redevelopment Agency acknowledging his understanding that the property was part of a Redevelopment Area and requesting the opportunity to present his plan for the facility's proposed use at the agency's April meeting.

Valetutto sent a written assurance to the Piscatellis on May 8, 2001, that the "use of the . . . property as a hospital use enjoyed a pre-existing, non-conforming use status. The proposed use represents a similar use that will enjoy the same pre-existing, non-conforming use status." On June 15, 2001, Drew wrote to Valetutto:

As you know, I am a principal of Rocky Top LLC ("Purchaser"). In that regard, this letter serves to confirm our recent discussions concerning the above-captioned property ("Property"). Specifically, your office and the City of South Amboy have confirmed that the following uses ("Intended Uses") constitute legal pre-existing nonconforming uses pursuant to N.J.S.A. 40:55D-68 with respect to the above referenced Property: 1 Urgent and ambulatory emergency services 2 Physical and occupational therapy 3 Daycare (Adult/senior[)] 4 Meals on wheels 5 Long term health care 6 Physician and general offices 7 Retail (gift shop) 8Imaging 9 Lab work and research 10 Nursing instruction 11 Outpatient surgery 12 Outpatient services -- clinical 13 Outpatient counseling 14 Social work and services 15 Mental health clinic 16 Birthing unit operations and services 17 Dialysis clinic 18 Hospice care 19 Heliport 20 Cardiopulmonary unit 21 Dental care 22 Endoscopy and 23 Ambulance station

As you know, Purchaser is scheduled to acquire the Property in the coming weeks. Upon acquisition of the Property, Purchaser intends to use the Property for the Intended Uses, as described above in this letter except for a Mental Health Clinic, Birthing Unit, and a Heliport. Based on our recent discussions, it is our understanding that Purchaser need not procure any approvals or permits from the City of South Amboy as a prerequisite to operating the Property for the Intended Uses. Specifically, without limitation, no site plan approval and/or variances are required.

Please acknowledge the foregoing by signing below where indicated.

Valetutto signed the letter, confirming that the intended uses with the exception of a mental health clinic, birthing unit, and heliport, as described in the letter, and the structures with respect to the property constituted pre-existing nonconforming uses, and no approvals or other permits from the City were required as a prerequisite to operating the property for the intended uses.

On July 13, 2001, Highland assigned its interest in the MMC property to plaintiff. By way of deed of that date, plaintiff agreed that the conveyance was expressly subject to a restrictive covenant running with the land that the Grantee, its successors and assigns, would "not use the premises or any portion thereof as an abortion clinic nor as a clinic for the treatment of mental health."

On July 15, 2002, Valetutto prepared the MMC Redevelopment Plan. The Redevelopment Plan listed the project goals as to construct a development to provide a multitude of essential medical services for the citizens of South Amboy and the surrounding area that were eliminated by the closing of the Memorial Hospital. The vacant portion of the redevelopment area should be constructed to complement existing surrounding uses. The Memorial Medical Center redevelopment plan is based upon the following objectives, which are consistent with the goals of the City of South Amboy Master Plan and the findings of the City of South Amboy Planning Board.

1. To develop the redevelopment area in a manner which will not place a burden on the municipal services, such as the school system, police, fire, solid waste disposal and sanitary sewage treatment.

2. To develop the redevelopment area in a manner which respects the topographical features of the site.

3. To maximize the leveraging of public and private funds to accomplish comprehensive development of the redevelopment area.

4. To improve the functional and physical layout of the redevelopment area.

5. To minimize any disruption or inconvenience to any of the residents within the vicinity of the redevelopment area.

6. To provide adequate medical facilities and services in order to maintain and improve the quality of life for existing and future city residents.

The proposed land use plan for the subject property was for a "Medical Arts Center."*fn6 The specified permitted uses for the property were the twenty-three items listed in Drew's letter and medical business offices. It is undisputed the list of permitted uses contained within the Redevelopment Plan were undefined.

On July 24, 2002, the Planning Board adopted a resolution approving the Redevelopment Plan and recommending it for adoption by the City Council. On August 15, 2002, the Planning Board adopted an amended resolution recommending the approval of the Redevelopment Plan by the City Council with the deletion of "mental health clinic" as a permitted use.

On August 15, 2002, Valetutto prepared an amended Redevelopment Plan, reiterating the earlier version in its entirety with the exception of the deletion of the phrase "mental health clinic" from the list of permitted uses.

On September 18, 2002, the City Council adopted Ordinance #19-02, approving the Redevelopment Plan as it applied to the MMC property only, and not the residential area. The ordinance, however, which is ambiguously drafted, only mentions Valetutto's July 15, 2002 Redevelopment Plan, stating it is approved and adopted as "modified" to only include the MMC property. It then directs an amendment of the zoning map with reference to the MMC Redevelopment Plan, "as modified, and as it relates to Block 89, Lots 3, 4 and 5, only." There is nothing in the ordinance to suggest disapproval of the August 15, 2002 amended Redevelopment Plan, thus the use of the earlier date was most likely inadvertent.

A. South Amboy Eldercare (Eldercare)

On or about September 2, 2003, Drew submitted an application for a zoning permit for Eldercare. The application listed the proposed uses as short-term elder care, which was "Occupational/physical therapy." Valetutto approved the permit application on September 10, specifying he granted approval for "approximately 15,000 sf of short term elder care on the 3rd floor, within limits of the existing building footprint. Use is permitted by the Memorial Hospital Redevelopment Plan." Pursuant to meetings and correspondence between Eldercare's Director Debra Witkowski, Drew, Valetutto, and the City Construction Official Thomas Kelly, respecting the services Eldercare intended to provide and the potential necessity of State licensing, Drew submitted another application for a zoning permit on or about August 16, 2004 on behalf of Witkowski. The application listed the proposed uses as "Hospice/social work and services." On August l7, Valetutto approved this application, with the following explanation: "Approval for use as hospice care, including counseling, social work and services, with stays of approximately twenty-five days or less, as defined by the appropriate State agency."

By letter dated October 6, 2004, Valetutto rescinded both permits for Eldercare, noting his approvals were based on the stated use of "hospice care," which is a permitted use in the MMC Redevelopment Area, but there was "conflicting and confusing information" and "continued confusion as to the exact proposed use" by Eldercare. He requested Drew provide a letter from the appropriate State agency "with regard to either the licensure of the proposed use or that it is a strict adherence to the hospice care use listed in the Redevelopment Plan." In depositions Valetutto stated it was Kelly who expressed the confusion and asked he reconsider the zoning permits, although Kelly did not have any authority with respect to that decision. Neither Drew nor Witkowski filed any formal appeal of the denial of the zoning permits.

B. United Drugs, Inc. (United Drugs)

On or about September 21, 2003, Tochukwu Enemuo, an African American, who had recently signed a lease with plaintiff through the Piscatellis' management company, Hillcrest Development and Management Corp. (Hillcrest), to open a United Drugs pharmacy at the subject property, submitted a zoning application to Valetutto. On October 3, 2003, the permit to operate a 975 square foot pharmacy was approved. However, Valetutto later discovered the pharmacy was to have a retail component, and by letter of December 10, 2004, he advised Enemuo:

The proposed use as a pharmacy within the Redevelopment Plan is only permitted as support for the on-site medical uses. As a pharmacy you would be permitted to provide prescription and non-prescription drugs for the medical uses on-site. The on-site medical uses are those approved tenants within the building. As a pharmacy you are not permitted any sales to the outside public. Such an [sic] use would be a retail use, and not permitted by the Redevelopment Plan.

I trust this letter is sufficient to delineate the approved use of a pharmacy at this location. Please feel free to contact me should you require any further detail or discussion.

Enemuo never opened the pharmacy. No one filed an appeal of Valetutto's interpretation to the Zoning Board. On May 31, 2005, Enemuo and plaintiff entered into a lease termination agreement.

Drew stated the following in depositions respecting his claim of animus and discrimination by the Mayor. Around the time of Enemuo's lease, Drew was also soliciting Dr. Jorge Gonzalez, a medical supply vendor with a store in the central business district of town, to relocate his store to the MMC. According to Drew, in late fall 2004, the Mayor telephoned him and angrily stated: "I'm not going to have 'our Dr. Hor-Hay [phonetic for Jorge Gonzalez]' or some African come into town and open a business that may detract from" two named family businesses operating in the City who were "pillars of the community" and who Drew described as "non-minorities." In his deposition, the Mayor denied making that statement or any statement regarding the racial makeup of tenants at the MMC, denied having any involvement in the permit process, and claimed he had never heard of Enemuo until he read the pleadings in this litigation.

C. Krutansky Children Daycare Center

On April 15, 2004, Gregory Krutansky, who had apparently signed a lease with Hillcrest, submitted a zoning permit application to operate a "child daycare/medical daycare" facility as a principal use of the leased space. Valetutto denied the application as child daycare was not a permitted use for the Redevelopment Area. No one filed an appeal.

D. Endeavor House

On August 15, 2004, Drew submitted an application for a zoning permit to Valetutto on behalf of a prospective tenant, Rosemary Sherman, to operate a licensed healthcare facility. The cover letter stated the premises would be used to operate a "Licensed Health Care Facility specializing in rehabilitative services." Three tiers of service were anticipated, "beginning with in-patient care which comes immediately after debilitation, with stays ranging from one to eight weeks (depending on the nature and array of physical ailments), followed by two additional tiers of outpatient care." The letter further stated that "a host of other support services will be offered" as required by the Department of Health and Senior Services (DHSS) for "this type of Health Care Facility." On August 17, 2004, Valetutto approved the application, noting, "Approval for rehabilitative services as certified by the State of New Jersey Department of Community Affairs (NJ Department of Health & Senior Services)."

On October 1, 2004, Endeavor House signed a ten-year lease with plaintiff through Hillcrest for 20,000 square feet of space in the subject property. The lease provided that the use of the space was "solely for the purpose of conducting an Inpatient and Outpatient Rehabilitation Facility for outpatient and residential treatment for drug and alcohol rehabilitation and related activities." According to the lease, the tenant would not operate a "mental health facility," noting the MMC site and the City had an agreement forbidding that use.

The applicant provided additional information to Valetutto, after which he responded by letter of November 4, 2004, advising that while Recovery Center was licensed by the State "to operate a twenty bed Residential Health Care Facility for the period of 3/1/04 to 2/28/05," the use was not permitted in the MMC Redevelopment Area. He explained:

[Your] proposal is to provide a variety of services, primarily as a "transition" for people recovering from substance abuse to return to a "work environment." The halfway house places emphasis on the "development of a responsible lifestyle" and a "sober network" including AA/NA. Other listed topics, such as "Self Awareness and Living Skills", "Family Therapy", "Recreation Therapy", and "Relapse Prevention" are clearly not uses provided for in the approved Memorial Medical Center Redevelopment Plan.

Endeavor House, which had joined in the June 2004 lawsuit as plaintiff-intervenors in September 2006, sought review and interpretation of the permitted uses for the MMC site, and the matter was ultimately heard by the Zoning Board pursuant to court order. At the May 9, 2007 Zoning Board hearing, Sherman, its president, described Endeavor House's work. She explained that Endeavor House operated a fifteen-bed long-term residential facility in Keyport, New Jersey, licensed by DHS' Division of Addiction. She presented the license that had been issued for the Keyport facility "pursuant to N.J.S.A. 26:2H-1 [to -26], for operation of a "RESIDENTIAL SUBSTANCE ABUSE TREATMENT FACILITY," consisting of "16 Adult-Long Term Beds."

Sherman described Endeavor House as "a small private health care facility" that provided "counseling and medical treatment for drug and alcohol rehabilitation." Providing twenty-four hour supervision, the staff included three medical doctors, about six nurses, and social workers who were certified in alcohol and drug treatment. Doctors were not present throughout the night, but a doctor would be on-site for several hours every day. Patients underwent a three-phase program, beginning with a very structured program of "six to eight hours of direct clinical [treatment] per day," including individual sessions, workshops, nutritional counseling, and learning non-chemical coping skills. Phase one was strictly residential; patients could only leave accompanied by a staff member. In phase two, lasting six to eight weeks, patients would have three to four hours of daily in-residence treatment, but they could be released to go to work if approved by the doctor. The last phase was an outpatient program, with group and individual counseling three to four times per week, for three hours. The entire program could last from thirty to forty-five days up to a year. On average, patients received treatment for sixty days, and between fifty and sixty percent of the facility's patients received exclusively outpatient care.

Patients were generally referred by physicians, with staff screening and a doctor deciding whether to admit the patient. These steps all occurred during regular business hours; there were no emergency or crisis admissions and all admissions were voluntary. Furthermore, the patients were all self-pay or insurance clients and no indigent, Medicaid, or Medicare patients were accepted, so most were employed. The inpatient program would cost about $15,000 per month. The facility had treatment contracts with police and fire departments and Fortune 500 companies. Sherman reported that the Keyport facility was in a residential neighborhood with all single-family homes, and in the prior two years it had not had any complaints or issues from its neighbors. Sherman had sold the Keyport facility and entered into the subject lease to operate a similar facility with up to forty beds.

Recovery Centers operated the same type of facility in a neighborhood of single-family residences with a school across the street in a twenty-bed center in Aberdeen, with the same type of staffing, patients, and treatment program. Sherman similarly reported that the facility had no complaints or issues in the prior two years.

Sherman explained that Endeavor House did not treat and did not intend to treat mentally*fn7 ill chemically addicted (MICA) patients at the subject property. She noted that the MMC had treated patients for both mental conditions and for substance abuse.

On cross-examination, Sherman confirmed that the doctors on staff at Endeavor House specialized in internal medicine, psychiatry, or addiction medicine. She explained that the doctors "treat people who might be suffering from a secondary diagnosis such as anxiety, situational infractions." She disagreed with characterizing this to mean patients with mental illness, explaining: "The direct result of their substance abuse, it is situational depression as opposed to mental illness where it would be chronic, long term, debilitating." She added: "I classify them as a secondary illness of depression, substance abuse, anxiety, that type of situation." Sherman acknowledged she had a business, not a medical background.

Sherman further explained that patients were not admitted to Endeavor House until they had already gone through a detoxification period or process, so no one was admitted until he or she was drug-free and alcohol-free, and patients were thoroughly searched to be sure that they did not enter the facility with those substances. The patient might still experience physical sensations following the detoxification, so a doctor might prescribe "not methadone, but maybe Librium or high blood pressure medication, something like that. Maybe something to sleep for the first few days." Sherman represented that the proposed facility would not accept someone on methadone.

The facility would also not accept a patient with a diagnosis of schizophrenia. A person with "a real strong suicide problem" would not be accepted for treatment and a person who demonstrated suicidal tendencies would never be kept in treatment. Sherman further represented that a person would not be admitted if he or she had engaged in a violent crime, and the residential manager would apprehend any person who was violent or causing a disruption.

In her seventeen years of experience with this type of residential facility, Sherman had not observed problems with people "escaping" or running out of the facility. Because Endeavor House was a voluntary program, patients could sign themselves out and the staff could not restrain them. However, they would know about intended departures and would be able to alert family members to pick up the patient and his or her possessions.

Theresa Messineo was a licensed clinical social worker who had worked for Endeavor House for five-and-a-half years as its clinical supervisor. She was responsible for supervising and training the clinical staff. She confirmed that Endeavor House did not accept patients with a primary diagnosis of mental illness. Screening occurred, usually first in a telephone interview with the prospective patient and with a family member, and, if possible, a treating physician or counselor. If the screening showed anything including violence, suicidal, or homicidal propensities, or a level of dangerousness or mental illness, the patient would not be admitted. After the initial screening, the patient and a family member would be subject to an on-site interview with a counselor, a nurse, and a doctor for a comprehensive evaluation. She explained that the doctors at Endeavor House were psychiatrists because those "are the people who treat substance abuse disorders."

Messineo concurred with Sherman's view that substance abuse is not a mental illness. She explained that substance abuse disorders were "filed separately from mental illnesses" under The International Classification of Diseases (TICD), an international standard of classifications. Messineo testified that substance abuse disorders arise when persons "are physically and psychologically dependent on a certain substance, alcohol, prescription medication or other drugs, and they continue to use. They are not able to stop using on their own. They continue to use despite negative consequences in ...

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