of cornerstone residence where it is if i may i'd like to reserve two minutes of my time for rebuttal to begin with your honor's i'd like to respond to the question that was posed to counsel on friday regarding the application of the possible application of the salerno principle to a statutory facial challenge despite searching i cannot find a facial challenge says truth facial challenge case provision directly is focused on forcing specific conduct in this case the fair housing act forty two u s c thirty six this scene provides that if any law permits conduct and the action or ordinance whatever it might be is a discriminatory allows a discriminatory housing practice whether or not it might have incidental effect on others who are not handicapped but the would not violate the f h a in another it would very well yes there is an exception to the protection of the fair housing act that anyone who is currently illegally using a controlled substance is not protected by the act know i don't believe that that's the case in the context of this case this ordinance cannot be read as pertaining to those who are currently using illegal drugs that was that was used in the past and  at it and an isolated way could be current addiction currently using or current addiction and not currently using dependent on on a controlled substance but in recovery addressing that dependency r it once clear it in made clear that it was rejecting the application for the occupancy permit based on treatment center and it was unclear initially they did become clear that this e speaks to addiction as being handicapped it's protected and housing act except when there is current illegal use makes it clear that addiction  not allow or instruction to exclude an individual who even if they had recently been using a controlled substance if they are in a supervised rehabilitation program where the statute also allows other steps to assure that there is no current use such as struck test just this working with the sally language here if we're wrestling with what the meaning of or an addiction we've got precedent on our books from this court that says under the undergoing or involved in a supervised rehabilitation program with testing to assure that he's not currently taking drugs to exclude that person from the work predominantly sixty two and over age is an alternative age and national mental development or physical disability age an alternative well that is not with  the the ordinance states the ordinance incorporates chapter two six two sixty three of the cleared in ordinances which pertain to and require that the residence be predominately sixty two an provides that residents need to be sixty two and older it also provides for physical components of the of the residence that are geared toward move building impaired individuals so you're way there is a state court action that so three different applications were filed this suit here applies to application number one application number three is the subject of a state court proceeding in allegheny county cork on ways we argued a statutory appeal to really as i town three is not an as applied challenge your honor it is a deemed approval argument the application there present a little bit differently than this application we were before judge james yes there are discussions between the parties is a  mean it could be a group on your own no determination was ever made that this was a group home or a treatment center or otherwise what was it if it was rejected not on the basis of it was a treatment center the determination was made by the building code official this property had been vacant for a period of years the building proto fishel required that in an engineer go inspect it and send a report that report was application that has gone through a series of iterations and as the court found below and is the brief submitted by mr driscoll confirms that the quote unquote decision that this was a treatment center does not is not based on anything that comes from the city of claritin it is based on a conversation that this applicant had with the salar about a conversation i was allegedly had with the s the second leg moved past impairments which would be alcoholism to talk about impingement on the major life the substantial impingement are limitations on a major life activity this portion of the ordinance does not illegal use is fatal on the illegal substance prong current use of alcohol is not fatal on that prong and it could be problematic except the treatment center definition does not go on to discuss the second prong of what a handicap is and that is a substantial impairment on a major life activity so this treatment center provision does not address a handicapped person on its face it's just a current alcohol use or an addict a current addiction of alcohol with no discussion of what whether there's impairment unsubstantial or major life activity that person a person who's a current alcohol user who has a substantial limitation would fall into the group home definition right why aren't you in trouble on a facial basis for saying that somebody who's currently addicted to alcohol is if that's what a treat for because i i believe your honor that those two provisions describe two different people the person in the treatment center would be somebody who's currently abusing alcohol or diktat alcohol the person in the group home would be a person who is currently addicted and has a substantial just because there is as well we're going to make a distinction between people who are addicted to alcohol currently and he flew addicted to alcohol and have a limitation currently function because he choose to do that what why does that make a difference to and i'll step back in five i'm obviously not describing it well enough and i apologize for that to fall under the auspices of protection of the fair housing act a person must be disabled and there to cause for that analysis only one of which is described in treatment cent the workplace and in the world because there are yeah i mean i'm thinking if you think about addiction to drugs for six and out there are a lot of highly functioning alcoholic where as drug use perhaps by its nature impairs i think it leaves the first part of the argument your honor yes there are functioning alcoholics and so the treatment center definition describes a person who clearly is currently abusing addicted to alcohol which on its own does not kick you in or out of doesn't require a limitation on a life that's exactly what i meet the definition of disability under the f h a practical yes use providing housing for three or more unrelated persons currently addicted to a controlled substance so we have addicted illegal users of residential zones we're talking about a former church and rectory that's what we're talking about you know the rectory is right within a residential zone and so the distinction is made that if you have active addicts that present one kind of a and they're not recovering they are not in recovery like right wrist my question was if i was not aware that there are such people that actually ause and try to treat us right right write so like mr briscoe we research we did not find any case applying the salerno standard but we do agree with the court for cornerstone to prevail here they have to argue ambiguity and by definition you have to get ready requires at least the possibility of one or two interpretations one of which might be dealt with so from our perspective the salerno standard makes sense but let me let me about and i understand the point that that made me answer is it might that that might be what that means all of which i think puts us back into analyzing this particular treatment standard treatment center definition in the context of intention is clearly to comply with it and the truth is if these are protected persons and if the people qualify as disabled persons under the f h a there is a place for them in addition to the new direction case that the case of washington versus davis who soon after title seven was passed distinguishes a statutory claim from a constitutional question and in the case let's say we were with because your honor in the in the way that this ordinance is written you cannot read current edition in the context that it is putting in it is put in where there would be any valid use consistent with the f read it in context of records in community services versus when gap said you look at the language you look at it in context and in context there could be no use that would that would not be in violation  have provided housing for the disabled including group homes personal care homes assisted living in this residential zone except for those disabled who are just such that you could make  a motion to dismiss as a factual matter we have asserted in the complaint that claritin officials explain to the seller this is a treatment center is not afraid to do this i mean i can explain a lot of things not ruling simply said this is not a permitted use the reference in the argument of opposing counsel that it was turned down because of some building code requirement is a post hoc rationalization that we address we responded to their their letter that some building code requirement needs to be met it was met it didn't make any difference