71 Op. Att'y Gen. 112 (1982)

71 Op. Att'y Gen. 112, 121-122 (1982)
  The Salvation Army is a religious organization. See McClure v. Salvation Army, 323 F. Supp. 1100 (N.D. Ga. 1971), aff'd, 460 F.2d 553 (5th Cir. 1972), cert. denied, 409 U.S. 896, reh. denied, 409 U.S. 1050. The function of the Salvation Army, which was founded by General William Booth in 1865, has been broadly described as "to evangelize the masses." In Wisconsin, the Salvation Army may incorporate as "a charitable, educational, missionary, philanthropic, beneficial and religious organization." Sec. 187.16(1), Stats. This statute recognizes the broad range of the Salvation Army's functions: "The corps is also called upon to do many things outside of its preaching ministry. There is a regular program for the visitation of homes. Food is provided to the needy and referrals of the sick are made to doctors and hospitals and other charitable functions." McClure, 323 F. Supp. at 1101.

71 Op. Att'y Gen. 112, 122 (1982)
  Salvation Army soldiers constitute the laity of that organization, while Salvation Army officers comprise the religious hierarchy of the organization. McClure, 323 F. Supp. at 1102. Accordingly, the statutory exemption contained in sec. 51.01, Stats., is available to any facility operated exclusively by and for officers living apart from society pursuant to the tenets of the Salvation Army.

71 Op. Att'y Gen. 112, 122 (1982)
B. Applicability Of CBRF Regulations To Adult Rehabilitation Centers.

71 Op. Att'y Gen. 112, 122 (1982)
  One of your specific concerns is whether the Salvation Army's adult rehabilitation centers are subject to licensure and regulation as CBRFs. Those facilities which are not equivalent to convents or monasteries are subject to licensure or regulation if they are "place[s] where 3 or more unrelated adults reside in which care, treatment or services above the level of room and board but not including nursing care are provided to persons residing in the facility as a primary function of the facility." Sec. 50.01(1), Stats.

71 Op. Att'y Gen. 112, 122 (1982)
  Under section HSS 3.04(2)(b) Wis. Adm. Code, any facility which serves three or more adults and is operated by a corporation meets the numerical criteria of sec. 50.01, Stats.

71 Op. Att'y Gen. 112, 122 (1982)
  A facility must also provide "care, treatment or services above the level of room and board." Examples are provided in section HSS 3.04(2)(a) Wis. Adm. Code:

71 Op. Att'y Gen. 112, 122 (1982)

  1. Information and referral.
  2. Leisure time services.
  3. Vocational services.
  4. Transitional services.
  5. Supportive home care services.
  6. Prescribed personal care services.
  7. Health monitoring and arrangement for health-related services.
  8. Counseling services.

71 Op. Att'y Gen. 112, 123 (1982)
Publications prepared by the Salvation Army indicate that such services are provided at the centers. A summary sheet prepared by the Salvation Army Men's Social Services Department (U.S.A.) indicates that centers provide "in-residence treatment, diagnostic services, work therapy, residential care, after care, information and referral services... within a Christian atmosphere and philosophy." The summary sheet goes on to state that the services offered by such centers include "therapeutic community, individual and group counseling; work therapy; recreational therapy; social rehabilitation; in-service education in substance abuse; Christian Services and counseling; medical assistance; referral or detoxification services."

71 Op. Att'y Gen. 112, 123-124 (1982)
  The centers are operated pursuant to a handbook, The Salvation Army Men's Social Service Handbook of Standards, Principles and Policies (hereinafter, "Handbook"), which is subject to continual revision. The service program in effect at the centers is comprised of five major approaches. The spiritual approach consists of such items as chapel services, devotions, Bible classes, vesper services, religious films and spiritual counseling (Handbook, 9:5:1-9:5:5). The leisure time approach attempts to channel the activities of residents in a "positive" fashion through organized and undirected activities (Handbook, 9:11:1-9:11:5). The medical approach consists of trying to satisfy all of the medical needs of center residents (Handbook, 9:13:1-9:13:7). The group approach consists of all group activities (Handbook, 9:9:1). While some of these activities, such as Bible classes are "spiritual," the vast majority are not. These other activities include such things as orientation meetings, Alcoholics Anonymous, fellowship clubs, group therapy and psychotherapy and discussion groups (Handbook, 9:9:1). The casework approach is distinct from the spiritual approach but encompasses, to some degree, all of the other approaches. As part of this approach, a caseworker is assigned and attempts both to serve and to track the progress of the resident (Handbook, 9:7:1-9:7:7). The caseworker attempts to use casework techniques whenever possible. Casework activities include intake, follow-up, interviewing and counseling, case planning and case recording (Handbook, 9:7:2). The summary sheet and Handbook indicate that, with the possible exception of prescribed personal care services, the centers offer all of the services enumerated in section HSS 3.04(2)(a) Wis. Adm. Code. See, e.g., section HSS 3.05(17), (31), (34) Wis. Adm. Code.

71 Op. Att'y Gen. 112, 124 (1982)
  Section 50.01(1), Stats., also requires that such services be provided "as a primary function of the facility." This occurs whenever "[t]he facility provides the service to a resident who has health, safety, or personal welfare related needs which make the resident unable to live in a residential setting in which the service is not provided." Section HSS 3.04(2)(c)1. Wis. Adm. Code. In order for a facility to be exempt from regulation, the individuals residing within it must be capable of arranging for all of their health, safety and personal welfare needs. The centers, however, admit only homeless and unattached adult males with identifiable, treatable social handicaps (Handbook, 1:1:4). The typical center resident is undersocialized, a 5 heavy drinker and a very dependent person (Handbook, 7:3:1-7:3:4; 9:1:1). Services are also provided to the mildly drug addicted, the emotionally unstable, vagrants and individuals released from mental or correctional institutions (Handbook, 7:5:2). Such individuals generally cannot arrange for the services offered by the centers. That is why they seek admission. A primary function of the centers is the provision of supportive services to these individuals. Also see Handbook, 1:1:4.

71 Op. Att'y Gen. 112, 124 (1982)
  The centers meet all three criteria contained in sec. 51.01, Stats. Section 51.03, Stats., and chapter H 3 Wis. Adm. Code therefore require that they be licensed as CBRFs.

71 Op. Att'y Gen. 112, 124 (1982)
C. Constitutional Issues With Respect To Adult Rehabilitation Centers.¯*

71 Op. Att'y Gen. 112, 124 (1982)

  1. Free Exercise Of Religious Beliefs.

71 Op. Att'y Gen. 112, 124-125 (1982)
  When the Salvation Army was founded, the concept of performing social work did not even exist. General Booth later determined that "attention to other than spiritual needs... was necessary to make his evangelism effective" (Handbook 1:1:1) (emphasis supplied). The concept of the adult rehabilitation center did not evolve until long after the development of the social work concept (Handbook 1:1:1- 1:1:3). The Handbook recognizes the distinction between social work and evangelism, referring to the operation of adult rehabilitation centers as "socio-spiritual service" (Handbook 3:1:2).

71 Op. Att'y Gen. 112, 125 (1982)
  This "social-spiritual" service has one overriding goal:

71 Op. Att'y Gen. 112, 125 (1982)
If one of the prime objectives of the treatment program is to retain the beneficiary on a temporary basis only, carrying through treatment until he has successfully conquered his handicaps, then the carrying out of an organized process, called "graduation," is the logical culmination.

71 Op. Att'y Gen. 112, 125 (1982)
....

71 Op. Att'y Gen. 112, 125 (1982)
. . . [T]he term "graduation,"... applie[s] to the man who moves from the beneficiary status to the employee status. This may involve leaving the center to an outside job, or may, according to the needs of the center and also the needs and desires of the man, mean a continuation in the center as an employee.

71 Op. Att'y Gen. 112, 125 (1982)
(Handbook, 9:15:1). Such a goal does not require that each and every resident become a soldier in the Salvation Army; tolerance of the religious views of residents is required (Handbook, 7:9:2-7:9:3). The requirements concerning CBRFs which are contained in ch. 50, Stats., and chapter HSS 3 Wis. Adm. Code, do not attempt to regulate the spiritual aspect of the Salvation Army's "socio-spiritual service."

71 Op. Att'y Gen. 112, 125-126 (1982)
  There is no indication that the Salvation Army must operate CBRFs. Even if such evidence did exist, the historical background concerning the establishment of the centers does not suggest that compliance with detailed health-safety code requirements and various administrative and record-keeping requirements is contrary to the sincere religious beliefs of the Salvation Army. Since there is no evidence that it is contrary to the religious beliefs of the Salvation Army to comply with CBRF regulations, the protective provisions contained in the free exercise clause of the first amendment and Wis. Const. art. I, 18, are not triggered. Even if such provisions could be invoked, I have already concluded that the state has a compelling interest in regulating all CBRFs. No special characteristics of the centers require alteration of that analysis.

71 Op. Att'y Gen. 112, 126 (1982)

  2. Establishment Of Religion.

71 Op. Att'y Gen. 112, 126 (1982)
  The Supreme Court has recently indicated that a challenge to a regulation on establishment clause grounds poses difficult questions of standing. See Valley Forge Christian College v. Americans United For Separation of Church and State, Inc., 102 S. Ct. 752 (1982).

71 Op. Att'y Gen. 112, 126 (1982)
  The only provisions of ch. 50, Stats., which even arguably require an establishment clause analysis are sec. 50.01(1), Stats., which exempts convents, monasteries and similar facilities, and sec. 50.03(9), Stats., which exempts care provided to individuals opposed to conventional medical treatment. There is no indication that the two statutory exemptions are underinclusive, i.e., that nonexempt care or treatment is provided by the Salvation Army in circumstances similar to those where the statutory exemptions can be claimed by other religious organizations. Consequently, it is doubtful if the Salvation Army has standing to challenge these exemptions. I have already concluded that the licensing and regulation of CBRFs under ch. 50, Stats., and chapter HSS 3 Wis. Adm. Code is constitutional. Therefore, even if the standing barrier could be overcome and an establishment clause claim successfully asserted, the result would be the elimination of the two statutory exemptions rather than the creation of a blanket exemption for all CBRFs operated by religious organizations. Cf. State ex rel. Briggs & Stratton v. Noll, 100 Wis. 2d 650, 658-59, 302 N.W.2d 487 (1981).

71 Op. Att'y Gen. 112, 126 (1982)
  I therefore conclude that adult rehabilitation centers operated by the Salvation Army are subject to licensure and regulation under ch. 50, Stats., and chapter HSS 3 Wis. Adm. Code.

71 Op. Att'y Gen. 112, 126 (1982)
BCL:FTC

71 Op. Att'y Gen. 112, 112 (1982) - Footnote

Destination-33   * In information provided to this office, you emphasize that the Salvation Army formerly operated a child welfare institution which was licensed and funded by the state pursuant to secs. 46.032, 48.66 and 48.67, Stats. You also indicate that, although the application was later withdrawn, the Salvation Army has requested CBRF licensure for a facility which serves ambulatory or semi-ambulatory aged and mentally impaired individuals. While such actions do not constitute a waiver of a constitutional claim for exemption from regulation, they might be considered by a court as diminishing the weight or credibility of a claim that CBRF regulation infringes upon the exercise of sincere religious beliefs by the Salvation Army.
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