american some and i represent the parks down property owners association the appellant recovering addicts d do not have a handicap unless they are substantially limited in a major life activity without evidence that future residents have a substantial limitation in a major life activity harmony house was not entitled to an accommodation under the fair housing act the brief show there was no such evidence in this case even when he kept has been established harmony house also had to show that the housing was necessary that twelve how that twelve residents were necessary d to the equal use model but there's no evidence or other statistics that show that that model is successful in treating sober living and there's no evidence either that that model is better than the alternative that parks don't offer to of six residents and because of that and for other reasons set forth in our priests we respectfully request that the district court's judgment be reversed i'd like to go and focus limitation in a major life activity several residents testified at trial about their current situations but that doesn't mean that other residents in the home have any substantial limitations and a major life be more than just alcoholism has to have the effect that's a fair housing act requires current residents evidence that they do this is really the issue is whether the at least a possible issue is whether the condition has to be housed how do we know what that is oh here we don't know that jet south make an ass pair of the problem the admissions criteria here don't really have any questions whatsoever about substantial limitations and major life activities use kind of analogy to the employment arena with the americans with disabilities act when when a private company wants to know if someone is disabled they can make more inquiries about that for example they can send the questionnaire to health care provider in so similarly here what harmony house could have done but doesn't do is they can certainly have questions that probe both whether there's an impairment but also what are the substantial limitations and major life activities and if you look at the admissions critique area for harmony house they don't quote for that it is a luxury high and sober living model that is seems to be a little bit more focused on just whether someone can pay and if they're an appropriate fit versus whether they truly are handicapped and how who does to me that the evidence is that the current residents of significant number all of them don't think that's accurate it's an individualized inquiry i think that is some evidence of their particular situations witness t j in montana harris gave testimony about that for them but there is there's no evidence that that's typical of other residents in the house on the issue of substantial limitations and major life activities the evidence is a little bit more on the impairment side and sober living  testified that he did not have any relapse issues ever in he was feeling fine for over the past year hermie house started this particular dwelling in or took over this dwelling in october of last year and so he basically entered harmony house as a non handicapped individual based off the testimony from the trial said he didn't have any substantial limitations currently so i think even if you're looking at the current residents that testified there's indications that harmony house's screening procedures do not limit people that are handicapped i mean we could see that with witnessed yes so i think because of that and there's a substantial portion of the briefing devoted to that that i the current residents when you're looking at the people that testified show situations where someone is not handicapped then i don't think you met your burdett and there has to from this perspective judge to be there are certainly better cross section where when we're better off for helping the newer members who are just getting the benefits of this sort of group living sue me part of that would say that in order to serve the interests of those who are sufficiently limited in some activity receive the benefits of this living you need people who are do have this cross section so you need some people there who are better off when that be sufficient i don't think so your hon i mean i think that the test is you know that you have to show what are the substantial limitations and i still can't really read it i mean if you have some residents who have that meet that test and others are there who have their own problems b necessarily better off in order to make the program work for those who do indeed are sufficiently lim's it seems to me that at least there's an argument as to why this is just sounds like i think there's two ways you have to show current and future residents in here we don't have any evidence of future residence so you didn't meet your burden of proof and you get no accommodation whatsoever or you could write the opinion you only get what you actually prove that trial and that is a more moderate way to write the opinion and i think in that interpretation i think it encompasses the examples that you're talking about with people more clearly fit within the definition of handicapped and that's what you get at trial i mean this is a full scale trial on the merits and the court can certainly make a finding as to what was actually proven at that level to account for that level of specificity of different levels of people in the home let me ask you to be your argument would indicate housing act is the answer to that your honor so if they're not if they're not handicapped i mean you can have someone there his it just becomes what are violates at least in this particular case the lodging house of the single family use restriction but no accommodation is o if they're not handicapped that would be the correct legal answer in that situation and once you move on to the rest of your argument you're well over half way through sure and i'd like to focus on the necessity argument in the necessity argument here it doesn't require a superior housing advantage i think the four chime or decision from the rd circuit rd circuit court of appeals is excellent here because it talks about the necessity requirement being a stringent legal standard and the problem here is harming houses saying that they have this unique model but yet there's no statistics or other data that shows it's affected ness at different residency levels there is no data that shows that it's better than the typical sober living home model which is the gold standard is the oxford house model and that typically operates at a lower number of residents and there simply is no evidence that shows that the harmony house model is effective we have this vague conclusory critical mass theory which seems to be a moving target and several circuits that have evaluated the necessity requirement the th in the six circuits and bryant woods and smith and lee have found that kind of a range of what is required out of the necessity element as about six dollars to eight dollars residents here we have twelve residents as being granite so we are certainly on the fringes and an outlier from what has traditionally been accepted in at least two other circuit courts and i think the problem is that harmony house has a theory about why twelve residence is beneficial but it has no evidence that it works better than a traditional six to eight person oxford house program and even if you look for example at the oxford house versus brown case from a little desert of louisiana it goes into an extensive anal grades the problem i have with that is that there was no research or other data on which to base that opinion he just kind of says i think this is what you need to have and i don't really have any studies or other data to support that and that's a problem because for example if you look at the oxford house model there's been extensive studies that it works addict the addictive behaviors journal cited by the oxford house the browning decision specifically talks about how it's been proven over time to be effective and dr berry just kind of says i think this is the number and even when you look at his testimony on that he kind of says well twelve to fourteen to at that point and that gets back to why wertheimer such an important case because it's not simply enough for them to say dr baer says this can be done they had to also show that their program was better than the alternative accommodation that harks stone offered of six residents and that simply hasn't occurred there's there's no discussion in the district court's decision about why six residents doesn't work specifically it's just kind of a focus on the twelve residents with no analysis about six residents and so i think those are the two problems with that as to why it should be given that weight i mean the whole notion on sober living being effective is because the auction has been studied over orsay years there's just no d a that to this day we still have no idea the effectiveness of harmony house at different residency levels we don't know if it's more effective at six or eight at trial you know with six residents residents specifically stated lower numbers and one park stone offered that lower number that should be sufficient to satisfy the fair housing act necessity requirements that's all i have at this to handsome  little bit confused about the district judge saying you waived your breach of contract and texas state law counterclaims i'm braced and help me much in that regard as i understand it this was a obviously this was a two day bench trial and then as is typical for a bench trial the judge directed both sides to file trial briefing to sort of summarize their positions and what they viewed how they viewed the evidence et so you're brave says not only did you do that but during the trial you raised these points repeatedly is that is my understanding correct that these this supposed robbery thing normally someone with thanks oh in a r well i'm sorry fifty b motion but that's not the case this is simply your in effect trial briefs of the judge about the evidence that have been presented that's correct judge barksdale the court sue a spontaneous basically sad hey i think there is a waiver in the final decision it had never been raised by any of the parties there was no pretrial order in this case because we had an accelerated trial and so there was no opening argument either in this case or even closing arguments there are some comments after the trial and that and so i think it would be hard pressed to find waiver here in a situation where we're admitting a contract that forms our breach a contract claim at trial in showing a breach as if you look at the findings of fact it's extensively talks about the violations in the findings of fact and the declaration that's admitted as the contract and so we should have verse of the sober living residence at issue certain individuals with disabilities d second that the accommodation requests the behalf of those individuals to d allow quote residents of the sober living residence was reasonable and  rd that the accommodation requests on behalf of those that it will was also necessary but district court below made key factual findings on each of those issues to support its just for planets and none of those factual findings was clearly analysis regime to being one of the qualifications where the criteria for a future residence and do those criteria meet the requirements of the paramount thing at what your response to that yes and i  record references that i just played your honor test of is testimony from the managing partner harmony halse asked to be on it as to what the criteria are what kinds of people are coming into city of jackson in two thousand for d a firm that southern district d of mississippi opinion in all respects and the d southern district of mississippi was looking at a  criterion for admission to the d sober living residence is that they all have to have substance use sword or they're all coming out of a treatment center except for a very few that may be coming from another sober living residence that didn't work out for them  they are all in a situation where they have to reintegrate back into society there's d testimony on the record again from the from the same gentlemen supporter that harmony house functions to reintegrate d them exciting meeting th at the treatment center they were unable to have an oiler they were able to live on their own they were unable to to function in society in a disharmony house that serves as a bit that reintegration mechanism own likely bet people p c s would ever be able to reintegrate back into society thoughtfully so the record evidence is that you as individuals that are coming into harmony house are people that are not yet abraded a society that that are not able to live independently they're not able to live on the testimony of the three individuals who are there d in the form of the house already at the time of trial just reinforce that the idea for example housing act analysis the similar there's a person become no longer disabled because they go to a methadone clinic and yet are able to to recover somewhat from their substance use addiction  why wouldn't it be as equally and again we have to be within the confines of the record but it would seem you have this model where you have persons in various  recovery and you have the persons that are have been in recovery longer in effect being mentors for the people that are just starting recovery in a sense why couldn't instead you have six person in recovery that's three bedrooms two persons to a room and have staff come in and be there during the day to give classes or whatever else now it would cost more to  harmony house and home and house wouldn't be making as much money but still that would be equally effective perhaps and again we have to look at the evidence but it seems it would be an a that's the problem common house elected about six bedroom house and now obviously wants to fill it up at two thousand five hundred dollars a month with twelve persons but you know we can let the business model drive what the law requires and then that gets into the necessity so why wouldn't just staff and again if there's no evidence on this don't reply but just same saying we have to have all all of people disabilities to live in the house of their choice but the housing of their choices the housing of ahmed the house decided by six bedrooms which is a very large house that's correct but these individuals all chose to go there and so for example the resident d j i'll just use him for example but d j specifically he was apt if he went to three treatment centers  the time he went to a sober living rose didn't the didn't have the structure didn't have the accountability d he liked currently house precisely because it was in an upscale neighborhood it had more people and so he decided to go there  was attracted to that model so that certainly harmony house chose that but also chose the moment with these individuals recovering from substance use disorder that are choosing to go there was in the same situation  seems to me army has come out of bedroom house and you'd be arguing that each one needs to people choose me that what is necessary for the recovering addicts for the disabled interventions doesn't depend on the size of the house it depends on what is necessary for group living according to whatever they have and says to make that kind of facility effective for the handicapped and vigils not for the house so it seems we lock the doors of the house is bigger than is necessary for the number of people to receive the benefits of the group living now your brief seems to be and i think you're all right now it is saying the opposite that they aren't out to enjoy the housing of think comes from case law which may not been dealing with anything like what we're talking about now some phrases need to be taken in context but in context some i'm talking about is a bigger house than your expert says is necessary for group living to work effect that but i think that in that situation there would be a whole host of other problems too because you would have a problem with the reasonable aside of the analysis you would have a problem with with with  opines of different factors beyond just ready the necessity element but luckily this court doesn't have to define that issues here because there is b minimum there is the testimony but critical mass on the right of the expert do therapeutic it be nice to have a big outdoor swimming pool with a waterfall that would be very disruptive of the other fifty nine houses in this area it's just a complicated matter is a fairly strict standard at least that some of these other courts of use it might be is well you know it is it true that but for the accommodation requested the model would not work in the individuals would not have presumably somebody who was counting that standard or were pursuing that a competition rather would not be able to show that but for that swimming pool its therapeutic value the residents would not be able to have an equal opportunity  to do all of their choice here however there is ample testimony on the record that without the competition of twelve these individuals would not have the equal opportunity d to use or enjoy the do all in their choice for example argument for a nd that i don't think that's before this court it wasn't cross appealed on the financial viability issue the district court basically made a finding that they're not financially viable at twelve there hasn't been any type of cross appeal on that issue so those discussions i think are largely irrelevant here today but to answer it just so the court knows there was testimony by the owner mr dan rash of the owner of harmony house in the record and sixty four dollars for the court's guidance where he basically said that they would be profitable between six dollars and seven dollars residents i think they could be profitable at six because they had things such as internet and marketing expenses but even if you take the testimony at face value it definitely doesn't support twelve residents being granted in this case there's a substantial profit margin for harmony house at twelve residence which i think is important  d let me also address the argument that mr witt burn made that you could never show future residents substantial limitations and major life activities i don't think that's true i think that's where the admissions criteria comes in if you have the right missions pretty area i think if you look at the oxer investment decision even though that you're in space the eastern district of texas case both those courts seem to get some type of nod to you know future or potential residents they don't come out specifically say that although oxford investment's does say potential residents as the standard so you can certainly meet that and one of the things i really have a problem with here is the court is more glaring error judge grants is those regulations diskette discussed substance abuse they do not discuss substantial limitations in a major life activity which means that you cannot rely upon those regulations to use supply missing evidence the regulations don't discuss substantial limitations in a major life activity so even though we don't have evidence in this record that harmony house except people from treatment centers that actually follow those regulations even if we did those regulations go to the impairment aspect as do a lot of that the record citations for mr witt barnett substance abuse going to stem parent it does not go to whether there is a substantial limitation in a major life activity and so the regulations basically don't apply here whatsoever or there wasn't have an insta show that they can rely upon it either way they're not helpful here for this particular matter so i think the other thing to keep in mind is that they're requesting a permanent injunction in the future and it seems really bizarre to me to say that park stone is going to have to give an accommodation to future residents and yet there's no evidentiary showing being required honest future residents it's not lining up the relief given isn't lining up with the evidentiary support which i think is a somewhat astounding to do that i i think more time or had this right that the analogy that kind of used was food and candy i think six residents is the food here it's what's necessary to merely are a drug and alcohol addiction i think twelve is candy it's just not essential so i'm really a drug and alcohol addiction and the only final thing i'd like to throw in is that i don't think the a t m the fair housing act are identical and a respects the fair housing act does not have a remission standard like the americans with disabilities act as one the amendments act was passed in two thousand and eight and that is the reason why witness k s is not handicapped there is not a remission standard where you can say of someone's eye witness chaos was not handicapped when he entered the house it's not an argument that harmony house worked and we tried to claim that he was handicapped he wasn't handicapped to begin with from the nd he entered and so for these