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FOR PUBLICATION

ATTORNEYS FOR APPELLANT:            ATTORNEYS FOR APPELLEES:

ROBERT P. KENNEDY                STEPHEN NEFF
GREG A. BOUWER                Office of Corporation Counsel
Merrillville, Indiana                    Indianapolis, Indiana
                            Attorney for Metropolitan Board
                            of Zoning Appeals

                             C. DUANE O'NEAL
                             DONNA HEISER DUBISKY    
                            Lewis & Kappes, P.C.
                            Indianapolis, Indiana
                            Attorneys for Eastside Community
                            Organization

                             JOHN H. SHARPE
                             ALASTAIR J. WARR
                            McNamar Fearnow & McSharar
                            Indianapolis, Indiana
                            Attorneys for Norton Health Care
                            Center, Inc.


IN THE

COURT OF APPEALS OF INDIANA

DISCOVERY HOUSE, INC.,            )
                                    )
    Appellant,                      )
                                    )
        vs.                         )    No. 49A02-9711-CV-739
                                    )
METROPOLITAN BOARD OF ZONING        )
APPEALS OF MARION COUNTY,           )
INDIANA, EASTSIDE COMMUNITY         )
ORGANIZATION, NORTON HEALTH         )
CARE CENTER, INC.,                  )
                                    )
    Appellees.                      )


APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Thomas J. Carroll, Judge

Cause No. 49D06-9608-CP-1148


October 5, 1998

OPINION ON REHEARING - FOR PUBLICATION

SULLIVAN, Judge

    Appellees, Metropolitan Board of Zoning Appeals of Marion County, Indiana, (BZA) Eastside Community Organization and Norton Health Care Center, Inc., have filed their Petition for Rehearing which, in part, asserts:
    "2. The Court's opinion erroneously and materially misstates the Record as follows;
     (a) 'In fact, each treatment facility is precluded from dispensing methadone without a doctor on the premises.' Opinion at page 8; and
     (b) 'While the Indianapolis location of Discovery House, at least initially, would not be the full-time office of the doctors staffing the facility, and Discovery House concedes that a doctor may not be on duty at all times, the actual dispensing of methadone may only occur when a licensed physician is present in the office.' Opinion at page 9.
    The Record has no evidence supporting these statements."

    We issue this opinion upon rehearing for the purpose of clarification with regard to the factual conclusions complained of.
    Mr. Paul Alexander, Executive Director of Discovery House USA in an affidavit which was before the BZA, stated:
        "3. At each Discovery House location, the in-house Medical Staff is comprised of at least one Physician, one or more Registered Nurse(s) or Licensed Practical Nurse(s), and one or more Registered Pharmacist(s).

        4. A qualified Physician, whose qualifications are proscribed by the laws and regulations of each of the jurisdictions in which Discovery House operates, serves as Medical Director at each Discovery House site. The supervision of a qualified Medical Director is a necessary and absolute condition for each of the Discovery House locations to open initially, and to operate on a daily basis. All other Medical Staff may provide services only on Doctor's Orders. Without the medical supervision and services provided by a qualified Medical Director at each location, as indicated by the Medical Director's signature on each and every patient's Treatment Plan, that Discovery House must cease operations." Record at 365.

At the public hearing, he testified that “[w]ithout licensed physicians and without a nurse on the premises, we do not operate.” Record at 206. Furthermore, he stated that “. . . methadone is available, licensed, with a physician who . . . is in fact local . . .” Record at 224.
    The thrust of the numerous remonstrances against the methadone distribution facility was not whether a physician would be in attendance at all times but rather that the nature of the “patients” who would be visiting the facility and the distribution of the methadone as maintenance treatment constituted a threat to the community, to the schools, children, neighbors and businesses in the area. There was expression that the facility would tend to encourage an increase in crime in the area. These fears would not be materially affected by the presence of a licensed physician, nurse and/or pharmacist at the crucial times of methadone distribution.
    Be that as it may, in retrospect, our conclusion in the opinion on the merits that “each treatment facility is precluded from dispensing methadone without a doctor on the premises”,

may be construed as an overly broad, if not erroneous interpretation of the evidence. We, nevertheless, remain of the view that Discovery House in its operation is governed by all federal and state laws and regulations concerning the distribution of prescription drugs or synthetics. Accordingly, methadone could not be legally distributed without appropriate licensed medical or pharmacy persons in attendance.
    Subject to this supplement to our earlier opinion and its clarifying purpose, we deny the Petition for Rehearing.
KIRSCH, J., and BAKER, J., concur.

Converted by Andrew Scriven