BILL ANALYSIS
SB 268
Page 1
Date of Hearing: July 7, 2009
ASSEMBLY COMMITTEE ON HEALTH
Dave Jones, Chair
SB 268 (Harman) - As Amended: July 1, 2009
SENATE VOTE : 23-15
SUBJECT : Alcoholism or drug abuse recovery or treatment
facilities: licensing.
SUMMARY : Requires applicants seeking licensure as a
residential alcoholism or drug abuse recovery treatment facility
(treatment facility) to include in the application to the
Department of Alcohol and Drug Programs (DADP) a certification
that the proposed facility complies with local zoning, or is a
legal non-conforming use, and to submit an approved fire
clearance, as specified. Specifically, this bill :
1)Requires applicants seeking a license for a treatment facility
to file with DADP, on forms provided by DADP, a completed
written application that includes a certification by the
applicant that the proposed facility is in compliance with
local zoning or is a legal nonconforming use.
2)Directs DADP to ensure that the license application in 1)
above contains a clear reference to existing law requiring
treatment facilities serving six or fewer persons to be
considered residential uses of property not subject to
conditional use permits, zoning ordinances, or other
clearances.
3)Requires applicants to also include in the completed written
application in 1) above a fire clearance approved by the State
Fire Marshall (SFM) or local fire prevention officer.
4)Makes the approved fire clearance valid for the two-year
duration of the license.
5)Requires any license renewal by a treatment facility serving
seven or more persons to include a fire clearance approved by
the SFM or local fire prevention officer based on building
codes in place at the time that the facility was initially
licensed.
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EXISTING LAW :
1)Establishes DADP to develop and implement a statewide plan to
alleviate problems related to alcohol abuse and license
treatment facilities that provide a broad range of services in
a supportive environment for adults who are addicted to
alcohol or drugs.
2)Defines a treatment facility as any premise, place, or
building that provides 24-hour residential nonmedical services
to adults who are recovering from problems related to alcohol,
drug, or alcohol and drug misuse or abuse, and who need
alcohol, drug, or alcohol and drug recovery treatment or
detoxification services.
3)Requires the Department of Social Services (DSS) to deny an
application for a new residential care facility license if the
director determines that the location is in proximity to an
existing residential care facility that would result in
overconcentration. Defines "overconcentration" to mean that
if a new license is issued, there will be residential care
facilities that are separated by a distance of 300 feet or
less.
4)Requires an applicant, when applying to DADP for a treatment
facility license, to file an application, obtain a fire
clearance approved by the SFM or local fire enforcement
officer, and pay a license fee.
5)Requires, in regulations, the documentation to be submitted
with the application to include a valid and appropriate fire
clearance issued from the fire authority having jurisdiction
for the area in which the facility is located. Requires the
fire clearance to include a determination of the number of
beds for ambulatory and nonambulatory residents and any
restrictions regarding nonambulatory clearances.
6)Requires, in regulations, the buildings and grounds of
treatment facilities to be clean, safe, sanitary, and in good
repair at all times for the safety and well-being of
residents, employees, and visitors.
7)Makes the license in 4) above valid for two years from the
date of issuance and permits DADP to extend the license for
subsequent two-year periods if the licensee submits a
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completed written application for extension and pays the
licensing fee prior to the expiration date on the license.
8)Requires, in regulations, DADP to conduct a licensing
compliance review of each treatment facility at least once
during every two-year licensure period.
9)Requires a treatment facility with six or fewer persons to be
considered a residential use of property and not subject to
conditional use permits, zoning ordinances, or other
clearances.
10)Prohibits, for the purpose of all local ordinances, a
treatment facility serving six or fewer residents from being
included within the definition of a boarding home, rooming
house, institution or home for the care of minors, the aged,
or mentally infirm, foster care home, guest home, rest home,
sanitarium, mental hygiene home, or other similar term which
implies that the treatment facility is a business run for
profit or differs in any other way from a single family
residence.
11)Makes a legislative declaration that it is the policy of this
state that each county and city shall permit and encourage the
development of sufficient numbers and types of treatment
facilities as are commensurate with local need.
12)Prohibits, under the California Fair Employment and Housing
Act (FEHA), discrimination against any person in any housing
accommodation on the basis of race, color, religion, sex,
marital status, national origin, ancestry, familial status, or
disability. Specifies that discriminatory land use
regulations, zoning laws, and restrictive covenants are
unlawful acts.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS :
1)PURPOSE OF THIS BILL . The author asserts that there is a lack
of adherence to local zoning, fire, or any reasonable
regulations for recovery and treatment facilities. The
sponsor of this bill, the City of Newport Beach, contends that
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applicants for a proposed facility should be required to
actually certify with their license application that the
facility meets local zoning or is a legal nonconforming use,
rather than merely being required to sign a statement on the
current application acknowledging that they understand that
they are obligated to comply with other state and local codes
and regulations. Furthermore, the sponsor states that clients
in these facilities deserve to be in places that reflect
proper health and safety protections and requiring an updated
fire clearance based on the building codes in effect at the
time a facility was initially licensed accomplishes this goal.
According to the author, this bill is intended to assist the
Legislature, DADP, and local jurisdictions in preserving the
spirit of residential recovery by fully integrating genuine
treatment homes in neighborhoods while enabling localities to
apply local zoning and updated building safety standards to
these facilities.
2)RESIDENTIAL TREATMENT FACILITIES . According to DADP,
residential treatment facilities provide nonmedical services
to individuals who are working to overcome their addiction to
alcohol or other drugs. Services include education, group, or
individual sessions; recovery or treatment planning; and,
detoxification services. In addition, a licensed treatment
facility may offer individualized services, such as vocational
and employment search training, community volunteer
opportunities, new skills training, peer support, social and
recreational activities, and information about and referral to
appropriate community services.
According to a survey by the federal Substance Abuse and Mental
Health Services Administration, more than 141,000 clients in
California received substance abuse treatment services from
1,751 treatment facilities in 2007. Of these facilities,
1,117 were private-non-profit; 406 were private for-profit;
177 were owned or operated by local governments; and, 12 were
owned or operated by the state. Over 90% served clients with
both alcohol and drug abuse problems. The 2007 survey
reported that the specific populations served in these
settings include clients with co-occurring mental health and
substance abuse disorders; adult men only; adult women only;
pregnant women and children; persons with HIV or AIDS; and,
criminal justice clients. For pregnant women and those with
young children, in particular, the small number of facilities
in California that allow women to bring their children with
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them to a residential facility while they receive treatment
provide a residential option that ensures that these women are
not required to turn their children over to the foster care
system.
3)DADP LICENSING REQUIREMENTS . DADP requires prospective
applicants for licensure as a residential treatment facility
to first identify a location where they plan to provide
non-medical alcoholism or drug abuse recovery, treatment, or
detoxification services. Applicants are required to complete
an initial application, submit an approved fire clearance from
the local fire authority, and pay an applicable license fee.
DADP reports that an update of the required fire clearance
depends on how frequently the local fire authority inspects a
facility for fire safety. Generally, DADP indicates that the
licensing process primarily focuses on health and safety
concerns, such as appropriate fire clearances, food service
standards, personnel requirements, physical environment
requirements, and residents' personal rights. Applicants are
required to pass a treatment facility on-site inspection
conducted by DADP to determine compliance with all applicable
laws and regulations. According to DADP, a review of the
entire facility is necessary to determine that it is a safe
and healthy environment. Regardless of the type of review,
whether it is for initial licensure or licensure renewal, a
DADP field inspector is required to complete a facility
walk-through form. The form includes a checklist of items
that the inspector evaluates during the walk-through
including, with regard to client safety, the presence of a
fire escape or escape ladder, if appropriate; posted exit
signs; posted emergency telephone numbers; and, the presence
of working smoke detectors and fire extinguishers. An
applicant that passes the initial inspection is issued a
license valid for two years. When a facility is due to renew
its license, DADP sends a courtesy notice to the facility 120
days prior to the expiration date on the license and conducts
an inspection of renewed licensees once every two year period.
Licensed facilities are mandated to display their license,
which indicates the treatment capacity and the population they
are allowed to serve, in a public location.
4)DSS FACILITIES . DSS reports that it does not contact local
government agencies regarding entities under its jurisdiction,
including adult residential facilities, adult residential
facilities for persons with special health care needs, group
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homes, and social rehabilitation facilities that are applying
for licensure for purposes other than requesting fire
clearances and providing overconcentration notification
required under current law. DSS indicates that it advises
applicants during the application process that they may be
subject to local ordinances regarding zoning or use permits
and recommends that they contact the local city or county
planning office to ensure that they comply with all local
requirements. However, DSS does not require proof that this
has been done as a condition of licensure.
Additionally, DSS notes that it issues licenses to facilities in
perpetuity; there is no requirement to "renew" a license.
However, a facility is required to submit a new application
and obtain a new fire clearance when there is an increase in
capacity, a change of ownership, or a change in location. If
a facility remodels or alters the structure of an existing
facility, the facility must obtain a building permit and may
be required to obtain a new fire clearance. DSS facilities
are required to obtain a fire clearance that is appropriate
for the clients served by the facility.
5)FAIR HOUSING PROTECTIONS . FEHA makes it illegal to engage in
various discriminatory practices relating to the sale and
rental of housing based on race, color, religion, sex, marital
status, national origin, ancestry, familial status, or
disability. It also prohibits land use regulations, zoning
ordinances, and restrictive covenants from discriminating in
housing on the basis of the aforementioned categories. FEHA
also states that groups of people with disabilities living
together in a single dwelling unit are considered a family.
6)PENDING STATE FIRE MARSHAL REPORT . In response to non-uniform
code enforcement between treatment facilities and local
governments, the SFM has convened a Drug and Alcohol Recovery
Treatment (DART) Work Group comprised of representatives from
the SFM's Office, the local Fire Marshal of Newport Beach, a
representative from Sacramento Metropolitan Fire Department,
representatives from DADP, and treatment facility providers.
The SFM's Office reports that the DART committee's draft
report containing recommendations with respect to the fire
clearance process for treatment facilities has been prepared
and is awaiting comment from the SFM before it is finalized.
According to the SFM's Office, it cannot provide a date
certain for publication of the final report but it expects to
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incorporate some of the DART committee's recommendations in
future code interpretations issued by the SFM.
7)SUPPORT . Various city fire departments write in support that
this bill will ensure that operators of group care facilities
have current fire clearances and their clients are treated in
facilities that reflect current standards for personal safety
protections. The Marin County Council of Mayors and
Councilmembers (MCCMC) claims that, in many instances,
facilities are placed in high concentration, creating
campus-like compounds, in and among single family
neighborhoods and, as a result, MCCMC believes a modicum of
oversight with respect to fire safety is appropriate. MCCMC
adds that requiring a facility to assert that it knows what
the approved local land uses are and that they are compatible
is also a simple and reasonable approach to working with the
community. Supporters note that, by helping to assure fire
code adherence in group homes serving as licensed treatment
facilities, this bill will benefit the residents of these
facilities and the communities in which they are located.
8)OPPOSITION . Providers and consumers of residential treatment
services object to this bill, contending that it is
unnecessary, disruptive, burdensome, and discriminatory.
Opponents argue that there is no showing of problems to
challenge the adequacy or effectiveness of the existing
licensing authority of DADP to regulate these facilities and
no demonstrable evidence to justify mandating fire clearances
every two years when the same requirement is not imposed on
other types of facilities that are not licensed by DADP. The
County Alcohol and Drug Program Administrators Association of
California (CADPAAC) points out that, by singling out
residential treatment programs for additional regulation that
is not required of all group home facilities, this bill
discriminates against individuals in recovery, who are
protected under FEHA and the federal Americans with
Disabilities Act. CADPAAC also contends that the requirement
for these facilities to obtain new fire clearances every two
years is problematic because, in many counties, fire
departments are too short-staffed to respond in a timely
manner to requests for fire inspections and this bill could
render a facility, through no fault of its own, non-compliant
because the local fire department failed to respond quickly
enough to the facility's request for an inspection. Lastly,
Narconon Southern California opposes the certification
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requirement in this bill because it would place an onerous
burden on operators of proposed facilities to learn every
nuance of the zoning code in the jurisdiction in which they
wish to locate and even a minor mistake could expose operators
to serious risk of having a license denied on the grounds of
misrepresentation.
9)RELATED LEGISLATION . AB 1284 (Huffman) would have required
DADP to notify the appropriate city or county planning agency
of a proposed facility's application for licensure as a
residential treatment facility if the facility operates as an
integral component of an existing licensed treatment facility
managed by the same licensee and is located within 300 feet of
the existing facility, as specified. AB 1284 was held on the
Assembly Appropriations Committee suspense file.
10)PRIOR LEGISLATION .
a) AB 2903 (Huffman) of 2008 would have authorized DADP to
require any person or entity applying for licensure to
provide specified information to DADP before a license is
issued. AB 2903 was held in the Senate Health Committee.
b) AB 724 (Benoit) of 2007 would have defined a sober
living home as a residential property that is operated as a
cooperative living arrangement to provide an alcohol and
drug free environment for persons recovering from
alcoholism or drug abuse, or both, who seek a living
environment in which to remain clean and sober, and that
meets other specified requirements. AB 724 failed passage
in the Senate Health Committee.
c) SB 530 (Dutton) of 2007 would have prohibited DADP from
licensing a treatment facility if another treatment
facility was located within 300 feet. SB 530 was held in
the Senate Health Committee.
d) AB 370 (Adams) of 2007 would have allowed a local
government to prohibit a registered sex offender released
on parole from residing with any other person on parole in
a residential treatment facility serving six or fewer
residents, unless the other resident is related by blood,
marriage, or adoption. This bill also would have permitted
a local government to include a residential care facility
serving six or fewer persons, including a sober living
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facility, within the definition of single family residence.
AB 370 was held in the Assembly Appropriations Committee.
e) AB 3007 (Emmerson) of 2006 would have prohibited DADP
from licensing a treatment facility if another treatment
facility was located within 300 feet. AB 3007 was held in
the Assembly Appropriations Committee.
11)POLICY CONCERNS .
a) The certification requirement in this bill is vague .
This bill requires the operator of a proposed facility to
certify in its licensure application that the facility
complies with local zoning or is a legal nonconforming use.
The term "legal nonconforming use" is not defined and this
bill does not describe what the certification would consist
of in order to enable an applicant to comply with this
requirement. In addition, this bill does not specify what
DADP would do with this certification information when
processing the application. Lastly, this requirement does
not clearly specify that the certification takes place only
at the time of initial licensure, and, therefore, could
create a barrier to licensure for these facilities and
reduce the availability of services, as compliance may be
difficult to achieve because zoning laws are subject to
change without an operator's knowledge. The author may
wish to clarify the intent of this provision and address
the potential for licensure denials that could result from
this bill.
b) Is this bill premature ? In light of the pending report
from the SFM, it may be appropriate to review the final
recommendations, since they may address some of the same
fire safety issues that this bill seeks to address, before
making any changes to existing requirements.
c) Discrimination based on disability . Federal and state
law prohibits discrimination against persons with
disabilities in housing. Individuals recovering from
substance abuse are included in these protections. By
applying new requirements only to residential alcohol and
drug treatment facilities but not to other types of
housing, is an unintended consequence of this bill to
discriminate against people with substance abuse
disabilities?
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REGISTERED SUPPORT / OPPOSITION :
Support
City of Newport Beach (sponsor)
Belmont-San Carlos Fire Department
City of Dana Point (prior version)
City of Lodi Fire Department
City of Pasadena Fire Department
City of Paso Robles Department of Emergency Services
City of Westminster (prior version)
City of Whittier (prior version)
Foster City Fire Department
Hayward Fire Department
Lake Forest City Council (prior version)
League of California Cities (prior version)
Marin County Council of Mayors and Councilmembers
South Lake Tahoe Fire Department
Templeton Fire Department
Opposition
California Association of Addiction Recovery Resources (prior
version)
California Association of Alcohol and Drug Program Executives,
Inc. (prior version)
California Therapeutic Communities (prior version)
CLARE Foundation (prior version)
Cliffside Malibu
County Alcohol and Drug Program Administrators Association of
California
CRC Health Group, Inc.
Narconon Southern California
Elements Behavioral Health (prior version)
Western Center on Law and Poverty (prior version)
Analysis Prepared by : Cassie Rafanan / HEALTH / (916)
319-2097