BILL ANALYSIS
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Elaine K. Alquist, Chair
BILL NO: SB 268
S
AUTHOR: Harman
B
AMENDED: As Introduced
HEARING DATE: April 22, 2009
2
CONSULTANT:
6
Dunstan/cjt
8
SUBJECT
Alcoholism or drug abuse recovery or treatment
SUMMARY
Requires applicants seeking a license for a recovery or
treatment facility from the Department of Alcohol and Drug
Programs (DADP) to certify that the facility is in
compliance with local zoning ordinances and requires DADP
to verify the certification.
CHANGES TO EXISTING LAW
Existing law:
Existing law declares that it is the policy of the state
for each city and county to permit and encourage a
sufficient number and type of alcohol or drug recovery and
treatment facilities commensurate with local need.
Existing law requires DADP to license all adult alcoholism
or drug abuse recovery or treatment facilities. Existing
law defines a recovery or treatment facility as a facility
that provides 24-hour residential non-medical services to
adults who are recovering from problems related to
substance abuse and provides that a licensee must provide
at least one recovery, treatment or detoxification service.
Existing law requires an applicant, when applying to DADP
Continued---
STAFF ANALYSIS OF SENATE BILL SB 268 (Harman)Page 2
for a treatment facility license, to file an application,
obtain a fire clearance approved by the State Fire Marshal
or local fire enforcement officer, and pay a license fee,
among other requirements. Existing law also requires
treatment facilities with six or fewer persons to be
regarded as a residential use and to be treated no
differently than other residential uses.
Existing law, the California Fair Employment and Housing
Act (FEHA), prohibits discrimination against any person in
any housing accommodation on the basis of race, color,
religion, sex, status, national origin, ancestry, familial
status or disability. Existing law also specifies that
discriminatory land use regulations, zoning laws and
restrictive covenants are unlawful acts.
STAFF ANALYSIS OF SENATE BILL SB 268 (Harman)Page 3
This bill:
This bill would require an applicant for an alcohol or drug
recovery and treatment facility, to certify that the
facility complies with local zoning ordinances. The bill
would also require DADP to verify this certification before
approving the application. This bill would make an approved
fire clearance valid for the two-year duration of the
license. This bill would require that to renew a license,
the holder of the license must obtain a new fire clearance
based on the building codes in existence at the time of
renewal.
FISCAL IMPACT
Unknown.
BACKGROUND AND DISCUSSION
The author argues that SB 268 would assist the Legislature,
DADP, and localities in protecting the spirit of
residential recovery, allowing for the full integration of
genuine treatment homes by allowing localities to apply
local zoning and updated building safety standards to
facilities. According to the author, there is a lack of
adherence to local zoning, fire, or any reasonable
regulations for recovery and treatment facilities. The
author states that applicants should be required to certify
and sign a document attesting that they are in compliance
with local zoning, rather than merely being required to
acknowledge that they understand they are obligated to
comply, which is what the current application process
requires. According to the author, this will make a
significant difference and that the provisions of this bill
will require an applicant to communicate with local
planning officials rather than ignoring them completely,
and suffering no consequences in their consideration for a
license.
Purpose of DADP licensing and regulation
According to DADP, health and safety concerns are the
primary focus of licensing provisions pertaining to
facilities. The licensing application process includes a
review of the facility's program in the following areas:
fire clearance, water supply clearance, plan of operation,
STAFF ANALYSIS OF SENATE BILL SB 268 (Harman)Page 4
total occupancy and treatment capacity determination,
reporting requirements, personnel requirements and records,
admission agreements, health screening resident records,
personal rights, telephones, transportation, health-related
services, food service, activities, buildings and grounds,
outdoor and indoor activity space, storage space, fixtures,
furniture and equipment. DADP requires compliance with
these on an ongoing basis and violations can result in
license suspension or revocation.
Substance abuse treatment
Treatment for substance abuse is similar to treatment for
any other chronic medical condition, in that treatment
requires care over a sustained period and requires a
sustained lifelong commitment on the part of those who are
afflicted. Substance abuse, along with other chronic
diseases such as hypertension and diabetes, can be
successfully treated with similar success rates, but
requires a variety of interventions and care. In the case
of substance abuse, successful treatment and recovery
requires facilities that offer differing levels of care and
treatment, including licensed treatment facilities,
recovery maintenance facilities, and sober living homes,
which provide a continuum of care. Many of these
facilities are not subject to licensing by the state under
current law.
Demand for treatment has increased with the passage in 2000
of Proposition 36, the Substance Abuse and Crime Prevention
Act of 2000 (SACPA). Proposition 36 requires probation and
drug treatment instead of incarceration for individuals
convicted of possession, use, transportation for personal
use, or being under the influence of controlled substances
and for similar parole violations, not pertaining to the
sale or manufacture of drugs. Under the act, eligible
offenders receive up to one year of drug treatment and six
months of maintenance care.
There has been ongoing controversy in the City of Newport
Beach over group residential uses, including facilities
used for recovery and treatment of drug and alcohol abuse.
The city adopted a new ordinance to deal with group homes
and their impacts. This resulted in lawsuits both from
city residents arguing that the ordinance was not
restrictive enough and from group home operators who argued
that the ordinance was impermissibly restrictive.
STAFF ANALYSIS OF SENATE BILL SB 268 (Harman)Page 5
Related legislation
AB 1284 (Huffman) would authorize DADP to impose specified
health and safety requirements or deny licensure of alcohol
or drug recovery and treatment facilities based upon
overconcentration of facilities or conditions of local need
and to provide notice to local government when considering
a license for a new facility that is an integral part of an
existing facility. This bill is in Assembly Health
Committee.
Prior legislation
SB 1000 (Harman) of 2008 would have required applicants
seeking a license for a recovery or treatment facility from
the Department of Alcohol and Drug Programs (DADP) to
certify that the facility is consistent with local zoning
ordinances and requires DADP to verify the certification.
This bill was held in Senate Health Committee.
SB 1000 (Harman) of 2007 would have, among its other
provisions, enacted provisions to increase local authority
over licensed facilities and sober living homes. This bill
was held in Senate Health Committee.
Arguments in support
Supporters argue that this bill will protect the integrity
and accountability of the facility while help ensure the
safety and beauty of neighborhoods is preserved. The City
of Newport Beach, the sponsor of SB 268, argues that this
bill will ensure that operators of group care facilities
will receive an updated fire clearance from a local fire
marshal or the state fire marshal when operators renew
their license with DADP. They note that, DADP can renew a
license with a very old fire clearance form. They argue
that clients deserve to be in a place that reflects current
standards for life safety protections. The city also
supports the bill because it will ensure that operators
comply with their existing responsibilities of complying
with zoning laws, and notes that currently DADP does not
verify compliance. They also state that the bill would not
apply to small facilities of six or less individuals
because they agree that local governments must treat small
licensed facilities as they do a typical single family use.
STAFF ANALYSIS OF SENATE BILL SB 268 (Harman)Page 6
Arguments in opposition
The Western Center on Law and Poverty (WCLP) argues that it
is not in the state interest to allow local governments to
erect barriers to housing for persons with special needs.
WCLP contends that the state has a serious shortage of
specialized housing, and many of these individuals are
leaving state institutions of care. WCLP argues that
successful reintegration into the community is crucial to
helping those with special needs make a transition to a
productive life, and it is crucial for the state to have
such persons succeed to reduce the burden on taxpayers.
WCLP also states that federal and state fair housing laws
bar discrimination in residential housing. In particular,
they note that these laws bar governments from enacting
barriers that impact only certain populations. They point
out that households of six, notwithstanding their relation
to each other, are protected by fair housing laws. The
California Association of Addiction Recovery Resources
argues that the fire clearance requirement is an
unnecessary, costly and onerous regulatory hurdle.
COMMENTS
1. This bill conflicts with other state law in some
circumstances. Under current law, a licensed recovery or
treatment facility, as with any development, must comply
with local land use restrictions. There is, however, a
significant restriction in that state law requires that an
alcoholism or drug abuse recovery or treatment facility
which serves six or fewer persons must be considered a
residential use of property for the purposes of state and
local laws. As a residential use, a treatment facility
with six or fewer persons must only comply with those local
requirements that apply to persons who reside in other
residential uses. For example, under existing law, a
facility of six would require no land use approval in most
instances. However, for a facility of seven or more, a
local government could, and often does, require a
conditional use permit or other land use permit. By
requiring facilities that house six or less individuals to
comply with local ordinances, the restrictions contained in
this bill directly conflict with these other state laws
that require smaller treatment facilities to be treated as
STAFF ANALYSIS OF SENATE BILL SB 268 (Harman)Page 7
residential uses.
The author and sponsor acknowledge that the bill does not
apply to facilities of six or less individuals because of
existing state law. However, the bill does not directly
reference the existing state law. Hence, if enacted, it
would be chaptered later than existing law, one
interpretation could be that it supersedes existing state
law.
2. Federal law would also appear to prevent the
implementation of this bill in those same circumstances.
The federal Fair Housing Act protects people with past and
current alcohol addiction and past drug addiction.
According to a Legislative Counsel opinion, the federal
Fair Housing Act precludes the state from treating
facilities with six or fewer residents differently than any
other residential use, if they are used by family units or
the disabled. Since persons who reside in a substance
abuse treatment facility are considered disabled, federal
law would render the provisions of SB 268 unenforceable for
these smaller facilities.
In addition, the Americans with Disability Act of 1990
(ADA) gives civil rights protection to individuals with
disabilities, similar to the protection provided to
individuals on the basis of race, sex, national origin and
religion. Alcohol and drug dependency are considered a
disability that receive protection under the ADA. In
particular, ADA applies to those who have successfully
completed a drug rehabilitation program, or who are
currently enrolled in such programs. Combined, these laws
bring into question whether the bill, if enacted, could be
legally applied in all instances.
3. This bill could be more restrictive than applicable
local ordinances. Residential uses, including recovery and
treatment facilities, could fail to comply with local
zoning laws, but still be permitted as a nonconforming
existing use. This bill could make it difficult in these
cases for facilities to obtain a license by requiring that
the facility comply with local zoning.
4. State Fire Marshal is currently working with an
advisory committee on residential care facilities,
including licensed treatment facilities. Because of the
STAFF ANALYSIS OF SENATE BILL SB 268 (Harman)Page 8
conflict over code enforcement between facilities and local
governments, the State Fire Marshal convened a working
group consisting of representatives from the State Fire
Marshal's Office, several local Fire Marshals from
throughout the state, including the Fire Marshal of Newport
Beach, and representatives from other state agencies. That
committee has a draft report in process and will make
recommendations to the State Fire Marshal. These may
address some of the same fire safety issues that this bill
addresses.
5. The fire safety provisions would impact facilities in
two ways. In addition to increasing the frequency of fire
inspections, the bill would require that the reinspections
be done using the building code that is in effect at the
time of reinspection rather than the appropriate previous
code. Using new and amended codes on existing structures
could result in very costly structural changes and could
render the continued use of the building uneconomic.
6. Proposed author's amendment
The author has proposed amendments to address issues raised
in the preceding comments 1, 2, 3 and 5. The author,
sponsor and other interested parties have expressed an
interest in continuing to work on the fire clearance issue,
including the preceding comment 4.
Proposed amendment
(a) A completed written application for licensure that
includes a certification by the applicant that the facility
complies with local zoning ordinances. The department shall
verify this certification before approving the application
. The department shall ensure that the license
application contains a clear reference to section 11834.23
that a drug abuse treatment or recovery facility that
serves six or fewer persons shall be considered a
residential use of property for the purposes of this
article.
(b) A fire clearance approved by the State Fire Marshal or
local fire enforcement prevention officer. If a drug abuse
treatment or recovery facility serves seven or more people,
this clearance shall be valid for the two-year licensure
term and shall expire at the conclusion of the term. Any
license renewal by a facility serving seven or more people
shall include a fire clearance approved by the State Fire
Marshal or local fire enforcement prevention officer based
STAFF ANALYSIS OF SENATE BILL SB 268 (Harman)Page 9
on building codes in place at the time of the applicable
license renewal that the facility was initially licensed.
(c) A licensure fee, established in accordance with
Chapter 7.3 (commencing with Section 11833.01).
POSITIONS
Support: City of Newport Beach (sponsor)
City of Dana Point
City of Fountain Valley
City of Westminster
League of California Cities
Oppose: CRC Health Group
California Association of Addiction Recovery
Resources
California Therapeutic Communities (CTC)
County Alcohol and Drug Program Administrators
Association of California
Sober Living By The Sea
Western Center on Law and Poverty
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