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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