HomeMy WebLinkAboutCORRESPONDENCE - 60B
Orozco, Norma
From:Nelson, Ariana <arianamn@hs.uci.edu>
Sent:Monday, September 07, 2020 11:58 AM
To:eComment
Subject:Benefits of a Syringe Exchange Program - an OC Physician's Perspective
To our Honorable Mayor and City Council,
As a pain physician and anesthesiologist at UC Irvine health I am in strong support of a syringe exchange
program for our county. I have witnessed the increased burden on our healthcare system when patients
struggling with substance abuse and without insurance are admitted for long hospital stays due to infections
and abscesses caused by contaminated needle use. Measure 85D is not only fiscally irresponsible but also
morally unconscionable as it increases the burden of preventable infections treated by OC healthcare workers
at a time when our resources are stretched thin due to COVID 19. As I am sure you can imagine, a patient with
addiction will not cease to abuse opioids because of needing to re-use a needle. Absence of clean supplies is
not a barrier to substance abuse. However, providing a clean syringe in exchange for a used syringe improves
access of patients with substance abuse to social services and programs to help them overcome addiction.
Lastly, OCNEP collected more needles than it distributed - and the current needle exchange clinic is also
collecting more needles than it is distributing. Most populous counties have more than one SEP (LA has at
minimum 7 in operation) and Orange County should follow this example. I see only positive ramifications
from permitting a safe needle exchange clinic to keep our town healthy, streets clean and help fight addiction.
Sincerely,
Ariana M. Nelson, MD
Associate Clinical Professor
Dept of Anesthesiology & Pain Medicine
UC Irvine School of Medicine Dean's Scholar
Clinic: (949) UCI-PAIN | Page: 714.506.6396
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Orozco, Norma
From:Soma Snakeoil <somasnakeoil@gmail.com>
Sent:Friday, September 11, 2020 6:36 PM
To:eComment
Subject:Syringe Exchange Access Ordinance
My name is Natasha Vanderhoof. I work directly on the street with the unhoused community with my
organization that has projects in multiple cities, including Santa Ana. I am a former drug user and formerly
unhoused. Reading the extensive proposal directed at shutting down syringe service providers in your area all I
see is flawed logic.
You know you can’t deter people from accessing clean syringes from hospitals and pharmacies, because State
law clearly defines that access. There will still be needles. There will be ODs at a higher proportion. If you
succeed, there just simply won’t be the resources to keep your public spaces clean, to manage the dead
bodies you’ll be picking up in the streets, or the increased budget your hospitals will be spending on managing
the spread of HIV and HCV.
You mentioned there are 50 SSPs in the State of California. That’s because it works. Why would your
community be different? Why would you want to deny your citizens resources? There is funding for SSP
initiatives that brings money into your community. You are not cleaning up your community. You are increasing
the financial and capacity burden on your morgue, your healthcare workers and your police. Harm reduction
services are preventive measures. Harm reduction groups stand in a gap that helps to keep not just drug
users, but also the rest of society safe. Why not collaborate with SSPs to find a better way and discuss best
practices? Should we stop health care because it’s not perfect? No, we seek to find a better way to make sure
the greater good is served. Harm reduction is part of the picture of the greater good.
The Trump administration has a plan to combat the HIV epidemic that includes harm reduction programs. Not
only is this choice you’re making divergent from government efforts on a State level, it also goes against
thinking on a Federal level. What do you think that will mean for funding in your community?
The U.S. government spends $20 billion in annual direct health expenditures
for HIV prevention and care.
There is a real risk of an HIV resurgence due to several factors, including
trends in injection drug use; HIV-related stigma; homophobia; lack of access to
HIV prevention, testing, and treatment; and a lack of awareness that HIV
remains a significant public health threat.
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Read more here: https://www.hiv.gov/federal-response/ending-the-hiv-epidemic/overview
With respect,
Natasha Vanderhoof
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Araiza, Fatima
From:Janine Maria <brokensouvenir@msn.com>
Sent:Saturday, September 12, 2020 10:36 AM
To:eComment
Subject:60B - disaprove
60B
There is no need for this. Syringe exchange is a vital service for the medial condition of substance addiction. It
is called harm reduction, and isn't as scary as the Council seems to believe. Syringe exchange is supported by
CDC and NIH research.
Syringe exchange, when done correctly, has the following benefits:
What Are the Benefits of Needle Exchange Programs?
Provide lifesaving Narcan to prevent deadly overdose.
Connect addicts with addiction treatment centers.
Allow for safe disposal of used syringes to reduce threats to communities.
Offer screening for HIV/AIDS and other illnesses.
One year savings to the government of $1,300 to $3,000 per client.
https://www.banyantreatmentcenter.com/2019/04/03/do-needle-exchange-programs-help-or-hurt-addicts/
https://www.cdc.gov/policy/hst/hi5/cleansyringes/index.html
https://www.drugabuse.gov/about-nida/noras-blog/2016/12/syringe-exchange-programs-are-part-effective-
hiv-prevention
Thank you,
Janine Stallings
Santa Ana resident, Ward 1
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Araiza, Fatima
From:Erik Varho <erikvarho@icloud.com>
Sent:Monday, September 14, 2020 8:32 PM
To:eComment
Cc:Pulido, Miguel; Sarmiento, Vicente; Penaloza, David; Solorio, Jose; Bacerra, Phil;
Mendoza, Nelida; Villegas, Juan
Subject:Public Comment on 20B, 20C, 60B, & 60C
Hello, my name is Erik Varho, and I am a resident of Ward 1. I would like to make public comment on a few
items on the agenda for Tuesday. I have watched a few recent meetings live, and I am still unsure of how email
comments are being considered at them. Can you please get back to me with how email comments are
addressed? Thank you.
The items I would like to comment on:
Item 20B:
I do not support this item. I understand that this is a federal grant, and we need to use this money or it will go
away. But according to the overview on the website, the JAG program states that funds can be used to support:
"a range of program areas including ... indigent defense ... education ... drug treatment ... mental health
programs ... behavioral programs."
ESPECIALLY if we are not spending our own City dollars, why wouldn't we use a gift like this to address root
causes of crime in our community? Instead you want to throw more money at the most militarized wing of law
enforcement, the SWAT team? We keep throwing more money in that direction, yet crime doesn't seem to be
going down, people don't feel any safer.
Item 20C:
Similarly, I understand this is a grant, and not coming out of City pockets. I don't think we should accept it,
because I don't think we should be increasing the size of our police department. Using federal money to hire
more police will still mean higher financial costs for the city in the long term. But if you absolutely have to use
that money in hiring more police, consider hiring people who can make the police department smarter and more
effective, instead of simply putting more bodies with guns in the streets.
Item 60B:
Prohibiting Syringe Exchange programs in Santa Ana would be a HUGE mistake. It would do NOTHING to
discourage or prevent drug use from happening. Drug addiction is a mental health issue, people will continue to
use drugs but in an unsafe manner; meaning dangerous and deadly diseases will more easily spread throughout
our community. You may think you are far removed from our brothers and sisters who struggle with
drug problems, but in actuality you aren't. They are our neighbors, friends of friends, family. Allowing
preventable diseases to propagate in these communities endangers all of us by proxy.
Item 60C:
Look I know it plays well with certain constituents of yours but it's 2020, it's time to stop the "Tough on Crime"
one-upmanship. Lets instead be smart on crime. Reverting certain misdemeanor charges back to felonies
essentially means putting more people in prison. And I get that that's the point, but there is so much research
and literature out there that shows that prison is not a very successful deterrent in preventing crime. Changing
certain property crimes into "wobblers", meaning they can either be determined a misdemeanor or felony leaves
that discretion to a judge. That leaves too much room for bias to come into play - and you know full well that
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means black and brown folks are going to bear the brunt of which of these crimes are deemed "felonies". They
say the safest communities are not the ones with the most police, but the most resources. Crime generally stems
from a lack of resources, putting those who commit property crimes in prison will convert them into hardened
criminals. Stop being so short sighted, stop thinking about your next election, think long term solutions, think
about your legacy.
Thank you,
Erik
2
UNIVERSITY OF CALIFORNIA, SAN DIEGO UCSD
BERKELEY DAVIS IRVINE LOS ANGELES RIVERSIDE SAN DIEGO SAN FRANCISCO MERCED SANTA BARBARA SANTA CRUZ
DIVISION OF INFECTIOUS DISEASE AND GLOBAL PUBLIC HEALTH 9500 GILMAN DRIVE,
MC -0507
DEPARTMENT OF MEDICINE LA JOLLA, CALIFORNIA 92093-0507
(858) 534-9570 FAX (858) 534-7566
EMAIL: kdwagner@ucsd.edu
September 15, 2020
RE: Proposed Ordinance NO. NS-XXX amending the Santa Ana Municipal Code (Health and
Sanitation) prohibiting syringe exchange programs in the City of Santa Ana
Dear Members of the Santa Ana City Council:
The continuing crisis of opioid-related harm poses a threat to the health and lives of
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thousands of individuals with Substance Use Disorder (SUD). To ensure that these risks are
mitigated in Santa Ana, we urge you to reject the proposed ordinance adding article XV Syringe
exchange programs (SEPs) to chapter 18 of the Santa Ana Municipal code.
The primary concern of the City Council relates to discarded syringes in the community.
We share this concern. The solution, however, is not to ban SEPs; rather, the City should draw
on best available evidence to address this community challenge, including the deployment of
syringe services in a way that have helped other jurisdictions effectively reduce syringe litter.
This proposed ordinance would aggravate the very problem it is purporting to solve.
Further, the proposed ordinance is not just bad public health policy; it may also be bad
law. Should the City Council move forward with this ordinance, it might expose Santa Ana
taxpayers to litigation on several fronts, including claims for violations of the Americans with
Disabilities Act (ADA), Section 504 of the Rehabilitation Act (RA), and the Equal Protection
Clause of the U.S. Constitution. In recent years, courts have struck down numerous local
ordinances targeting SUD treatment facilities and their clients as discriminatory under the ADA
and the RA; similar analysis is applicable to syringe exchange programs.
1
COVID-19 and the opioid crisis: When a pandemic and an epidemic collide | AAMC. (n.d.). Retrieved September 14, 2020, from
https://www.aamc.org/news-insights/covid-19-and-opioid-crisis-when-pandemic-and-epidemic-collide
I. Community Benefit of Syringe Exchange Programs
2,3,4
The evidence for harm reduction and syringe exchange programs is overwhelming.
SEPs increase substance use treatment engagement for those with SUDs, which leads to
5
decreases in injection drug use as well as fatal and non-fatal drug overdoses. A study in
Seattle found that individuals who used SEPs were 5 times as likely to initiate substance use
5
treatment than those who did not use SEPs. Those who utilized SEPs often were also three
times as likely to report reductions or stopping of illicit drug use compared to those who had
5
never used SEPs.
SEPs greatly reduce the spread of communicable diseases including HIV, hepatitis and
5
other fungal and bacterial infections by limiting use of non-sterile needles and needle sharing.
SEPs therefore have positive health benefits to not just those who inject drugs, but also first
5
responders, family members of people who use drugs, and the rest of the community.
Additionally, SEPs do not lead to more crime or drug use, and in fact have the opposite effect,
5
by addressing the underlying needs of those with SUDs.
The proposed ordinance purports to be concerned with community safety, specifically
with regards to syringe litter. However, a ban on SEP operations within the city is likely to
substantially increase syringe litter in Santa Ana. A study comparing a city without an SEP
program to a city with SEP programs found eight times as many improperly disposed syringes in
the city without SEP programs, suggesting that SEPs are a “significant means of collecting used
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syringes and do not increase the amount of publicly discarded used syringes.”
The proposed ordinance also claims that “residents who require syringe exchange
services for medical purposes are currently able to acquire these services at pharmacies and
hospitals,” making the assumption that this results in less syringe litter. However, a study in Los
Angeles found that "Sourcing syringes from SEPs decreased the odds of improper disposal”
7
and “sourcing syringes from pharmacies increased the odds of improper disposal." Yet another
study found that pharmacy obtained syringes are associated with unsafe syringe disposal vs.
2
Davis, S. M., Daily, S., Kristjansson, A. L., Kelley, G. A., Zullig, K., Baus, A., Davidov, D., & Fisher, M. (2017). Needle exchange
programs for the prevention of hepatitis C virus infection in people who inject drugs: A systematic review with meta-analysis. Harm
Reduction Journal, 14(1), 25. https://doi.org/10.1186/s12954-017-0156-z
3
Abdul-Quader, A. S., Feelemyer, J., Modi, S., Stein, E. S., Briceno, A., Semaan, S., Horvath, T., Kennedy, G. E., & Des Jarlais, D.
C. (2013). Effectiveness of structural-level needle/syringe programs to reduce HCV and HIV infection among people who inject
drugs: A systematic review. In AIDS and Behavior (Vol. 17, Issue 9, pp. 2878–2892). Springer. https://doi.org/10.1007/s10461-013-
0593-y
4
Des Jarlais, D. C., Feelemyer, J. P., Modi, S. N., Abdul-Quader, A., & Hagan, H. (2013). High coverage needle/syringe programs
for people who inject drugs in low and middle income countries: a systematic review. In BMC public health (Vol. 13, Issue 1, p. 53).
BioMed Central. https://doi.org/10.1186/1471-2458-13-53
5
CDC. (2019). Syringe Services Programs FAQs. https://doi.org/10.2105/AJPH.2014.302111
6
Tookes, H. E., Kral, A. H., Wenger, L. D., Cardenas, G. A., Martinez, A. N., Sherman, R. L., Pereyra, M., Forrest, D. W., LaLota,
M., & Metsch, L. R. (2012). A comparison of syringe disposal practices among injection drug users in a city with versus a city without
needle and syringe programs. Drug and Alcohol Dependence, 123(1–3), 255–259. https://doi.org/10.1016/j.drugalcdep.2011.12.001
7
Quinn, B., Chu, D., Wenger, L., Bluthenthal, R. N., & Kral, A. H. (2014). Syringe disposal among people who inject drugs in Los
Angeles: The role of sterile syringe source. International Journal of Drug Policy, 25(5), 905–910.
https://doi.org/10.1016/j.drugpo.2014.05.008
SEP obtained syringes. "PWID who utilized pharmacies as their primary source of syringes
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were 1.5 times as likely to have disposed of used syringes unsafely in the past 12 months."
Rather than ban the single most effective tool against syringe litter, the Santa Ana City
Council should do everything they can to support the proper operations of multiple accessible
SEP sites.
II. Similar Bans and Restrictions Have Been Struck Down as Violations of the ADA
In bringing forth a facial challenge under Title II of the ADA, the plaintiff must establish
that (1) qualified individuals with a disability (2) have been subjected to discrimination by a
public entity (3) by reason of their disability. Past litigation successfully challenging
discriminatory zoning ordinances establishes the applicability of this framework to treatment
facilities serving patients with SUD. Numerous courts have held that laws that single out opioid
treatment programs are facially discriminatory under the ADA and the RA; below is only a brief
overview of this line of jurisprudence.
Twenty years ago, the Ninth Circuit established that the ADA and the RA apply to
restrictions targeting substance use treatment facilities because zoning “is a normal function of
9
a governmental entity.” The Court reasoned that the “sweeping language
\[of the ADA\] — most noticeably Congress’s analogizing the plight of the disabled to that of
discrete and insular minorit\[ies\]’ like racial minorities— strongly suggests that §12132 should not
be construed to allow the creation of spheres in which public entities may discriminate on the
1011
basis of an individual’s disability.” Since then, the Third and Sixth Circuits have followed suit.
In its seminal decision, the Ninth Circuit struck down an emergency moratorium prohibiting the
operation of methadone clinics within 500 feet of residential areas as facially discriminatory on
the basis of the plaintiff’s disability and a per se violation of Title II of the Americans with
12
Disabilities Act.
Three years later, the Sixth Circuit invalidated an ordinance limiting the number of all
SUD treatment clinics to one facility for every 20,000 persons in the city, finding that “the blanket
prohibition of all methadone clinics from the entire city is discriminatory on its face” in violation of
13
the Americans with Disabilities Act. Similarly, the Third Circuit struck down a state statute
imposing a ban on the establishment of SUD treatment clinics within 500 feet of schools,
churches, and residential housing developments, holding that the statute “facially singles out
methadone clinics, and thereby methadone patients, for different treatment, thereby rendering
14
the statute facially discriminatory.” There are a number of other cases where the ADA and RA
8
Zlotorzynska, M., Weidle, P. J., Paz-Bailey, G., & Broz, D. (2018). Factors associated with obtaining sterile syringes from
pharmacies among persons who inject drugs in 20 US cities. International Journal of Drug Policy, 62, 51–58.
https://doi.org/10.1016/j.drugpo.2018.08.019
9
Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 731 (9th Cir. 1999).
10
Id.
11
New Directions Treatment Servs. v. City of Reading, 490 F.3d 293 (3d Cir. 2007); MX Group, Inc. v. City of Covington, 293 F.3d
326, 342 (6th Cir. 2002).
12
Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 737 (9th Cir. 1999).
13
MX Group, Inc. v. City of Covington, 293 F.3d 326, 345 (6th Cir. 2002).
14
New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 304, 307 (3d Cir. 2007).
have been successfully invoked to strike down arbitrary and discriminatory provisions targeting
SUD treatment and rehabilitative services.
III. Legal Principles Applied in the Line of ADA Substance Use Treatment Cases Is
Applicable to Syringe Exchange Programs
In light of the legal framework presented above, the proposed Santa Ana SEP ordinance
15
is vulnerable to challenge as facially discriminatory in violation of (1) Title II of the ADA and (2)
16
Section 504 of the RA. Facial challenges may be brought when “a single party asserts that a
law is invalid not only as applied to them, but as applied to all parties that might come before the
17
court.” As stated above, in bringing forth a facial challenge under Title II of the ADA, the
plaintiff must establish that (1) qualified individuals with a disability (2) have been subjected to
discrimination by a public entity (3) by reason of their disability. If a plaintiff can establish that
the ordinance violates the ADA or RA, the municipality, at minimum, may be enjoined from
enforcing the wrongful ordinance and, if shown to be intentionally discriminatory, may be held
18
liable for monetary damages including attorneys’ fees.
The proposed Santa Ana SEP ordinance constitutes an effort to exclude SEPs from
properly operating in Santa Ana and intentionally discriminates against persons with SUD—a
disability covered under the ADA. To be clear, the proposed ordinance bans SEPs within Santa
Ana entirely. This ban is a denial of health services to persons with SUD in contravention of the
ADA and RA, and will likely fail judicial scrutiny as courts have repeatedly stuck down closely
analogous provisions in the past.
IV. The Statutory Carve-out Exempting Individuals Who Currently Use Illegal
Substances Does Not Apply
Courts have recognized that persons with SUD are “disabled” within the meaning of the
19
ADA. In fact, the Department of Health and Human Services specifically provides that “drug
addiction, including an addiction to opioids, is a disability under Section 504 of the Rehabilitation
Act \[and\] the Americans with Disabilities Act…when the drug addiction substantially limits a
15
“Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132.
16
No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial
assistance.” 29 U.S.C. § 794.
17
New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 308 n.11 (3d Cir. 2007).
18
This is because the only way to alter a facially discriminatory ordinance is to remove the discriminating language, which would
render the ordinance a nullity. Additionally, it is worth noting that a facial challenge precludes the government from asserting a
reasonable accommodation defense. See Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 735 (9th
Cir. 1999) (concluding that the reasonable modifications test does not apply to facially discriminatory laws and that facially
discriminatory laws present per se violations of § 12132); MX Group v. City of Covington, 293 F.3d 326, 334 (6th Cir. 2002) (holding
that plaintiff not required to request reasonable accommodation because the blanket prohibition of all methadone clinics from the
entire city was discriminatory on its face).
19
MX Grp., Inc. v. City of Covington, 106 F. Supp. 2d 914, 918 (E.D. Ky. 2000), aff'd, 293 F.3d 326 (6th Cir. 2002) (finding that
recovering heroin addicts are “persons with a disability” within the meaning of the ADA).
20
major life activity.” The City may counter that protection under the ADA and the RA does not
extend to clients of SEPs, as current users of illegal drugs may not be “qualified individual\[s\]
21
with a disability.” Both statutes contain limited carve-outs exempting discrimination protections
from those who are “currently engaging in the illegal use of drugs” when the “covered entity acts
22
on the basis of” the plaintiff's illegal use of drugs.
These statutory exclusions are inapplicable in the present context. This is because both
statutes limit their “current use” exceptions with safe harbor provisions guaranteeing the
protection of health services to individuals who currently use illegal drugs. Both the ADA and RA
23
maintain that covered entities are prohibited from denying “health services, or services
provided in connection with drug rehabilitation” to an individual on the basis of that individual’s
24
current illegal use of drugs, if they are otherwise entitled to such services. The SUD treatment
cases outlined above have not considered the applicability of the safe harbor provision to the
substance use disorder context because the patients in question were participating in
25
rehabilitation programs and no longer using illegal drugs. While courts have yet to litigate the
applicability of the safe harbor provision to SEPs, ample reasoning supports the contention that
patients of SEPs would fall under the protections of the safe harbor provision.
An analysis of the legislative reasoning behind the adoption of the statutory carve-out
supports the contention that the safe harbor provision should be applicable in the present
context. The statutory exemption excluding ADA protection for individuals currently using illegal
drugs was adopted to serve an employment function: The legislative purpose was focused on
ensuring that employers could discharge employees who may have been under the influence or
otherwise impaired while at work and that employers could not discharge employees who were
26
recovering from SUD. The fact that Congress, through the safe harbor provision, explicitly
provided for an exception for patients seeking health services, even if those individuals are
27
currently using drugs, is important. As one Federal District Court judge reasons, “\[i\]f the \[ADA\]
and \[RA\] were interpreted to exempt from its protections individuals with drug addictions
20
U.S. Dep’t of Health & Human Services Office for Civil Rights, Fact Sheet: Drug Addiction and Federal Disability Rights Laws
(Oct. 25, 2018), https://www.hhs.gov/sites/default/files/drug-addiction-aand-federal-disability-rights-laws-fact-sheet.pdf.
21
42 U.S.C. § 12131; 29 U.S.C. § 794.
22
See 42 U.S.C. § 12210(a); 29 U.S.C. § 705(20)(C)(i).
23
“Covered entities may include, but are not limited to: Substance Use Disorder Treatment Programs, Hospitals and Health Clinics,
Pharmacies, Contracted Service Providers, Medical and Dental Providers, Nursing Homes, Child Welfare Agencies, State Court
Systems. In addition, state and local governments are prohibited from discriminating on the basis of disability.” (emphasis
added). U.S. Dep’t of Health & Human Servs. Office for Civil Rights, Fact Sheet: Drug Addiction and Federal Disability Rights Laws
(Oct. 25, 2018), https://www.hhs.gov/sites/default/files/drug-addiction-aand-federal-disability-rights-laws-fact-sheet.pdf.
24
42 U.S.C. § 12210(c); 29 U.S.C. § 705(20)(C)(iii).
25
See New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 309 (3d Cir. 2007) (“The ADA and Rehabilitation Act
specifically provide that a person who has completed a supervised rehabilitation program or is currently participating in such a
program and “is no longer engaging” in drug use shall be deemed a qualified individual”); MX Grp., Inc. v. City of Covington, 293
F.3d 326, 339 (6th Cir. 2002) (“Indeed, the statute itself contemplates that individuals participating in drug rehabilitation programs,
who are no longer using drugs or presumably impaired by their effects, are covered by the Act”).
26
See New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 309 (3d Cir. 2007) (quoting Brown v. Lucky Stores, Inc.,
246 F.3d 1182, 1188 (9th Cir. 2001) (quoting H.R. Rep. No. 101–596, at 62 (1990); H.R. Rep. No. 101–596, at 62 (1990); U.S. Code
Cong. & Admin. News 1990, pp. 565, 570–571 (Conf. Rep.)).
27
The U.S. Department of Health and Human Services Center for Substance Abuse Treatment has provided guidance on this
regulation, stating that as an example that “a hospital that specializes in treating burn victims could not refuse to treat a burn victim
because he uses illegal drugs, nor could it impose a surcharge on him because of his addiction.” U.S. Dep’t of Health & Human
Servs. Ctr. for Substance Abuse Treatment, Substance Abuse Treatment for Persons With HIV/AIDS, 37 Treatment Improvement
Protocol (TIP) Series 1, 187 (2008), https://www.ncbi.nlm.nih.gov/books/NBK64923/pdf/Bookshelf_NBK64923.pdf.
seeking help…section (c) would be reduced to a nullity and mere surplusage…Whether any of
the prospective patients were engaging in the use of illegal drags is orthogonal to the question
28
of whether the ADA or \[RA\] provides protection for them.” Under this line of reasoning,
patients of SEPs who are currently using illegal substances are still within the protection of the
ADA through the application of the safe harbor provision.
A SEP in Santa Ana, if permitted to function like those in many other municipalities
across the country, would provide services that not only directly improve health outcomes to
those with SUDs, but to the greater community as well. Further, in order to be authorized by the
state of California, an SEP must provide services or refer to services that are general health
services; e.g. HIV and hepatitis screening, hepatitis B and C vaccinations. An individual with
SUD would be “otherwise entitled” to those services, and they may not be denied those services
due to their current use of illegal drugs. Because the Santa Ana SEP ordinance is a ban on
SEPs anywhere in the jurisdiction, the result is a denial of health services to persons with
SUD—a direct violation of the safe harbor provision in the ADA and the RA.
V. Avoiding Protracted and Costly Litigation
In defending provisions eventually struck down as facially discriminatory, government
entities have incurred substantial financial and resource burdens. For example, in RHJ Med.
Ctr., Inc. v. City of DuBois the United States District Court for the Western District of
Pennsylvania struck down a zoning ordinance that specifically excluded SUD treatment facilities
from large areas of the city, holding that it violated the Equal Protection Clause of the U.S.
29
Constitution. The Court ordered the City of DuBois to pay $132,801.64 in damages and over
30
$270,000 in attorneys’ fees and costs.
In addition, ordinances and other policies that are facially discriminatory against people
with SUD are increasingly the subject of investigations and litigation by the Civil Rights Division
of the US Department of Justice and investigations by the Office for Civil Rights of the U.S.
Department of Health and Human Services (OCR), resulting in a number of high-profile
31
settlements. In the event it determines noncompliance with the ADA or RA, OCR can require
compliance with settlement agreements and increased reporting and monitoring, under the
threat of termination of federal funds. Although these efforts have not yet related to SEPs, there
have been discussions about such possibilities. To avoid the risk of protracted and expensive
litigation or investigation by OCR, the city council should reject the proposed provision and
instead support further expansion of harm reduction services.
Further, Santa Ana need look no further than neighboring cities like Costa Mesa, which
has been mired in court proceedings over and over again, attempting to defend its provisions in
28
RHJ Med. Ctr., Inc. v. City of DuBois, 754 F. Supp. 2d 723, 750 (W.D. Pa. 2010).
29
RHJ Med. Ctr., Inc. v. City of Dubois, No. 3:09-CV-131, 2012 WL 12859837, at *1 (W.D. Pa. Aug. 17, 2012), aff'd, 564 F. App'x
660 (3d Cir. 2014).
30
RHJ Med. Ctr., Inc. v. City of Dubois, No. CIV.A. 3:09-131, 2014 WL 3892100, at *1 (W.D. Pa. Aug. 8, 2014).
31
U.S. Attorney's letter to the Essex County Sheriff's Department, The Marshall Project (Jan. 3, 2019),
https://www.themarshallproject.org/documents/5674055-Essex-County-USA-Correspondence.html#document/p4/a473090; U.S.
Dep’t of Health & Human Servs. Office for civil rights, Joining the Fight Against the Opioid Crisis (Oct. 2018),
https://www.hhs.gov/sites/default/files/opioid-newsletter-october-2018.pdf.
relation to sober living facilities, with no definitive answers. At least four decisions have come
down in the last six months, evidence that Costa Mesa is spending a significant amount of time,
energy, and especially money in legal battles.
VI. Conclusion
The proposed ordinance to ban SEPs in Santa Ana will have detrimental public health,
legal and economic consequences. There is another approach that the city can take that factors
in its interests in the public safety of its residents, including those who use drugs, who are also
constituents deserving of public interest. By working with advocates, public health experts, and
potential SEP clients to create an SEP that meets the needs of all members of the community,
the city can successfully increase proper needle disposal, improve the health and safety of
those who inject drugs, and avoid costly litigation.
Sincerely,
The Harm Reduction Legal Project
Leo Beletsky, JD, MPH
Associate Professor, UC San Diego School of Medicine
Professor of Law & Health Sciences, Northeastern University
Orozco, Norma
From:Anthony Johnson <anthony723johnson@yahoo.com>
Sent:Tuesday, September 15, 2020 4:36 PM
To:eComment
Subject:Planning Commission Public Comment 9/15/20
Good afternoon,
I would like to share my thoughts on some of the items that will be discussed today.
12A: while tourism is an important revenue stream for the city, we do not need to establish a separate district
for tourism purposes. At a time where members of the community are struggling to pay rent for the lodging in
their own homes, we should be focusing on them, not tourist lodging. How can the community members be sure
that the creation of this district won't further gentrifry their neighborhoods and make the rent at their homes
unaffordable? This district would be toward the benefit of hotels and to the detriment of the people who live in
the city, so it should not be established.
20B: for months, community members have spoken to the council and protested about reshaping the way our
police operate, including demilitarizing them. And still, these JAG funds are set to be allocated for additional
SWAT gear. How does this provide or assist in justice? These funds should be used for things that actually
decrease crime and pursue justice, such as public education, assisting those living in poverty, eliminating
homelessness, or drug and mental health treatment. I hope you reconsider the use of these funds and how many
better uses we can find for nearly $100,000.
Item 60B: on the subject of drug treatment and homelessness, I would discourage this proposed ban. While
several other nearby cities have placed these bans, we can lead by example and prove that we truly care about
our communities by promoting these programs. I would encourage you to read about the tangible benefits of
these programs shown by the ACLU.
https://www.aclu.org/fact-sheet/needle-exchange-programs-promote-public-
safety#:~:text=A%20study%20by%20the%20National,had%20never%20used%20an%20exchange.
Item 60C: further and increasingly criminalizing residents does not make our city safer, and it has been proven
for decades. Making these crimes felonies also unjustly targets our poor, Black, and Hispanic populations, on
the first day of National Hispanic Heritage Month nonetheless. We should be creating ways to decrease crime,
not increasing it, and this Act would neither reduce crime nor keep us safe. I hope you reconsider this
resolution.
Thank you,
AJ
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