09.04 First Reading ORD 02-19 Mobile Needle Exchange ProgramAGENDA ITEM
January 8, 2019
TO: Honorable Mayor and Members of the City Council
THRU: Rick Otto, City Manager
FROM: Wayne Winthers, City Attorney A--Z�
REVIEW: City Managef/�,1Finance
1. SUBJECT
Ordinance No. 02-19 — Introduction and first reading of an Ordinance of the City Council
of the City of Orange.
2. SUMMARY
An ordinance of the City Council of the City of Orange amending Title 5 of the Orange
Municipal Code by adding Chapter 5.91 prohibiting the establishment of mobile needle
exchange programs in the city.
3. RECOMMENDED ACTION
Adopt Ordinance No. 02-19.
4. FISCAL IMPACT
None.
5. STRATEGIC PLAN GOALS
Goal 1: Provide for a safe community
b. Provide and maintain infrastructure necessary to ensure the safety of the public.
d. Assure the development of the City occurs in a fashion that maximizes public safety.
6. DISCUSSION AND BACKGROUND
In August 2018, the City was notified that the California Department of Public Health
(CDPH), on an application from the Orange County Needle Exchange Program
("OCNEP"), issued a permit to OCNEP to operate a mobile needle exchange program
("NEP") in Orange on Tuesday and Friday afternoons beginning August 6, 2018. The
permit also authorized the NEP in several cities adjacent to Orange.
The County of Orange, along with the cities of Orange, Anaheim and Costa Mesa initiated
litigation against the State and the OCNEP and successfully obtained a preliminary
ITEM 1.4 1 1/08/2019
injunction preventing the start of the operation of the NEP. A hearing on the permanent
injunction won't likely occur until mid -year of 2019.
While the operation of mobile needle exchange programs are not a contemplated land
use in the city's zoning code under any of the land use zoning designations, city staff has
also struggled with the operational aspects that the business model of a mobile NEP
presents. For example, the operation of the mobile NEP, as proposed by the OCNEP,
would have the collection of used needles and distribution of clean needles from a table
or tables set up between two parked cars. This would occur on a public street, in the
public right of way, without sufficient safety barriers and present a significant danger to
the public.
The mobile nature of the NEP also exacerbates the spread of used needles and syringes
throughout the City of Orange, given the inevitable migration to the city of those
individuals seeking free needles, and the lack of control for the safe and proper collection
and disposal of used needles. As evidenced by the now shuttered mobile NEP that
operated in the Santa Ana Civic Center and the thousands of hypodermic needles and
syringes recovered from the Santa Ana Riverbed, the improperly discarded needles
present a clear and present health and safety concern to the public.
Finally, the operation of the mobile NEP proposed by OCNEP would occur in an area
bordered by the Santa Ana Riverbed, primarily industrial by nature, and devoid of any
homeless encampments or areas where intravenous drug users would congregate.
Anyone utilizing the NEP would be coming into this neighborhood for this purpose only
and the use and operational aspects of the mobile NEP would introduce an element that
is otherwise not present, but for the operation of the NEP.
As a result, the lack of zoning regulations applicable to such a land use, and deficiencies
in the operational aspects of the mobile NEP present health, safety, and welfare hazards
to the general public. As such, the City Council may declare the actions or activities
constitute a public nuisance, and prohibit the activity in the city.
This new Chapter 5.91 adds Mobile Needle Exchange Programs to the list of business
activities, similar to cannabis related businesses, allowable by State law, however
prohibited in the City of Orange.
7. ATTACHMENT
• Ordinance No. 02-19
ITEM 2 1/08/2019
ORDINANCE NO.02-19
AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF ORANGE AMENDING TITLE 5
OF THE ORANGE MUNICIPAL CODE BY
ADDING CHAPTER 5.91 PROHIBITING THE
ESTABLISHMENT OF MOBILE NEEDLE
EXCHANGE PROGRAMS IN THE CITY.
WHEREAS, the City Council of the City of Orange, pursuant to its police powers afforded
under the California Constitution, Article XI, Section 7, California Government Code Section
37100, et seq., may adopt regulations to protect the health, safety and welfare of the community,
and may declare that certain uses and conditions constitute a public nuisance; and
WHEREAS, California Government Code Section 38771 authorizes the City, through its
legislative body, to declare actions and activities that constitute a public nuisance; and
WHEREAS, while the City of Orange recognizes that properly located and regulated
needle exchange programs may help prevent the spread of blood borne diseases among intravenous
drug users (IDUs), the improper collection of used needles and syringes pose a grave risk to the
health, safety and welfare of the public; and
WHEREAS, the mobile needle exchange program that previously operated within Orange
County failed to properly recover and safely dispose of used hypodermic needles and syringes
distributed at the City of Santa Ana Civic Center, which resulted in thousands of used needles
being discarded in or on the adjacent public buildings, streets, sidewalks, parks, and waterways,
both in Santa Ana and elsewhere in the County; and
WHEREAS, approximately 14,000 improperly discarded needles were recovered during
the cleanup effort after the individuals left the Santa Ana Riverbed Recreational Trail area
following the relocation of the homeless encampments; and
WHEREAS, first responders are regularly exposed to needles carried on suspects, victims,
within confiscated property, and those discarded in public places, which present a health and safety
hazard to our first responders and the general public; and
WHEREAS, the mobile nature of the needle exchange program only exacerbates the
spread of used needles and syringes throughout the City of Orange given the inevitable migration
to the City of those individuals seeking free needles, and the lack of control for the safe and proper
collection of used needles; and
WHEREAS, the operation of the mobile needle exchange program, as proposed by the
Orange County Needle Exchange Program ("OCNEP"), would have the collection of used needles
and distribution of clean needles occur in the public right of way, without sufficient safety barriers,
resulting in a danger to the public and participants and constituting a public nuisance; and
WHEREAS, the operation of the mobile needle exchange program proposed by OCNEP
would operate in an area bordered by the Santa Ana Riverbed Recreational Trail, in an area that is
primarily industrial, and devoid of any homeless encampments or areas where IDU's would
congregate. As such, anyone utilizing the needle program would be coming into this neighborhood
for this purpose only and would introduce an element that is otherwise not present, but for the
operation of the needle exchange program; and
WHEREAS, the operation of a Mobile Needle Exchange Program has the risk of
negatively impacting the Goals and Objectives of the Land Use Element of the General Plan,
including, but not limited to, Goal 3.0, Policy 3.4; and Goal 6.0, Policies 6.2, 6.9 and 6.10 related
to development activity that is mutually beneficial to both the environment and the community;
and
WHEREAS, the operation of a Mobile Needle Exchange Program carries the significant
risk of negatively impacting the Goals and Objectives of the Safety Element of the General Plan,
including, but not limited to, Goal 4.0, Policies 4.1, and 4.2 related to Hazardous Materials and
Human -Caused Hazards; and
WHEREAS, for the reasons stated above, the improper collection and disposal of used
hypodermic needles and syringes is detrimental to the public health, safety, and general welfare
and therefore constitutes a public nuisance; and
WHEREAS, the City Council finds that the provisions of this ordinance are consistent
with the protections provided for its citizens in the City of Orange General Plan; and
WHEREAS, this Ordinance has been reviewed for compliance with the California
Environmental Quality Act (CEQA), the CEQA Guidelines, and the City's environmental
procedures, and has been found to be exempt, consistent with the findings in Section II of this
Ordinance; and
WHEREAS, the City Council does therefore determine that this Ordinance is necessary
for the preservation of the public health, safety and welfare of the community.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION I:
That the recitals contained herein are true and correct, incorporated herein, and form the
basis for the adoption of this Ordinance.
SECTION II:
The subject Ordinance is exempt from the provisions of the California Environmental
Quality Act (CEQA) per State CEQA Guidelines Sections 15060(c)(2), 15060(c)(3) and
Ord. No. 02-19 2 WWW
15061(b)(3) because it will not result in a director reasonably foreseeable indirect physical change
in the environment, because there is no possibility it will have a significant effect on the
environment, and it is not a "project", as defined in Section 15378 of the State CEQA Guidelines.
In the unlikely event the Ordinance would constitute a project under CEQA, it is exempt
from the provisions of CEQA per State CEQA Guidelines Section 15321 (Class 21, Enforcement
Actions by Regulatory Agencies) because the amendment to the Business Taxes and Regulations
Ordinance is an action taken by the City as a regulatory agency, as authorized by local ordinance,
to prevent the issuance of permits and licenses for mobile needle exchange business operations to
prevent a public nuisance. As such, no further analysis is warranted or required.
SECTION III:
Title 5 of the Orange Municipal Code is hereby amended to add Chapter 5.91 to the Orange
Municipal Code, which shall read as follows:
Chapter 5.91
Mobile Needle Exchange Programs
5.91.010 Definitions.
NEEDLE EXCHANGE PROGRAM shall mean a program as described and defined in
California Health and Safety Code Section 121349 et. seq., as they may be amended from time to
time, apply to this chapter and are incorporated herein by reference.
MOBILE NEEDLE EXCHANGE PROGRAM shall mean a Needle Exchange Program,
as defined herein, that is capable of moving or being moved about readily, having no fixed or
permanent location.
5.91.20 Prohibition(s).
Mobile Needle Exchange Programs of all types are prohibited. No person shall establish,
operate, conduct, or engage in a Mobile Needle Exchange Program within the city.
5.91.030 Public Nuisance.
Any violation of this Chapter shall constitute a public nuisance and may be abated as
provided in Chapter 1.08 of this Code and/or under state law.
5.91.040 Penalty.
Any person who violates this section shall be guilty of a misdemeanor and fined up to
$1,000 and/or be imprisoned in Orange County Jail for a period of up to six months.
Ord. No. 02-19 3 W W W
SECTION IV:
The proposed ordinance amendment achieves multiple goals of the General Plan. Consistent
with the Land Use Element, the ordinance amendment would allow for the preservation of
development activity that is mutually beneficial to both the environment and the community.
Consistent with the Public Safety Element, the ordinance amendment improves community safety
and reduces the opportunities for criminal activity. Consistent with the Urban Design and
Economic Development Elements, the ordinance amendment helps promote a streetscape that
enhances the economic vitality and visual quality of commercial corridors and creates a business
environment conducive and appealing to commercial industry.
SECTION V:
If any section, subdivision, paragraph, sentence, clause or phrase of this Chapter is for any
reason held to be invalid or unconstitutional, such decision shall not affect the validity of the
remaining portions of this Chapter. The City Council hereby declares that it would have passed
this Chapter, and each section, subdivision, paragraph, sentence, clause and phrase thereof,
irrespective of the fact that any one (or more) section, subdivision, paragraph, sentence, clause or
phrase had been declared invalid or unconstitutional.
SECTION VI:
The City Clerk is hereby directed to certify the adoption of this Ordinance and cause the
same to be published as required by law. This Ordinance shall take effect thirty (30) days from
and after the date of its final passage.
ADOPTED this day of , 2019.
Mark A. Murphy, Mayor, City of Orange
ATTEST:
Pamela Coleman, City Clerk, City of Orange
Ord. No. 02-19 4 WWW
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF ORANGE )
I, PAMELA COLEMAN, City Clerk of the City of Orange, California, do hereby certify
that the foregoing Ordinance was introduced at the regular meeting of the City Council held on the
day of , 2019 and thereafter at the regular meeting of said City Council duly
held on the _ day of , 2019 was duly passed and adopted by the following vote,
to wit:
AYES:
COUNCILMEMBERS:
NOES:
COUNCILMEMBERS:
ABSENT:
COUNCILMEMBERS:
ABSTAIN:
COUNCILMEMBERS:
Pamela Coleman, City Clerk, City of Orange
Ord. No. 02-19 5 WWW