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HomeMy WebLinkAboutMINUTES - 06271995 - D13 To: BOARD OF SUPERVISORS I.O.-3 S Contra FROM: t,. INTERNAL OPERATIONS COMMITTEE �; Costa County r�ST''CUUN� C*y DATE: June 19, 1995 SUBJECT: CLEAN NEEDLE EXCHANGE PROGRAM SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATIONS: 1. CONCLUDE that a Clean Needle Exchange Program is one tool that can be useful in saving lives by preventing the spread of AIDS among intravenous drug users, and serving as a bridge to provide treatment, prevention and education programs to drug users. 2. EMPHASIZE that in noway does the Board of Supervisors condone the illegal intravenous injection of drugs. 3. AUTHORIZE the Health Services Director to sponsor more forums and other appropriate forms for public education on the subject of a Clean Needle Exchange Program in an effort to continue the public dialogue on this subject and heighten the public's awareness of the subject. 4. CONCLUDE that, in view of the State Attorney General's June 7, 1995 opinion on this subject and in light of the District Attorney's memorandum on this subject dated June 8, 1995, that it is not legally advisable to conduct a clean needle exchange program in this County. 5. CONSENT to allow the Health Services Director to withdraw his previous recommendation that a clean needle exchange program be undertaken in Contra Costa County if a legal means could be found to do so, due to the legal obstacles. 6. REMOVE this item as a referral to the Internal Operations Committee. CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ROGERS ACTION OF BOARD ON .Tune 27-, 1995 APPROVED AS RECOMMENDED X OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE X UNANIMOUS(ABSENT 5 ) AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. ATTESTED June 27, 1995 Contact: PHIL BATCHELOR.CLERK OF THE BOARD OF cc: County Administrator SUPERVISORS AND COUNTY ADMINISTRATOR Health Services Director District Attorney D Sheriff-Coroner BY AJ A DEPUTY 1> I.O.-3 -2- BACKGROUND: On April 25, 1995, the Board of Supervisors referred to the Internal Operations Committee a recommendation from the Health Services Director that a Clean Needle Exchange Program be undertaken in Contra Costa County providing a legal means could be devised to implement such a program. On June 7, 1995, the State Attorney General, Dan Lungren, issued an opinion which appears to eliminate any possibility of operating a Clean Needle Exchange Program legally in this County. The District Attorney forwarded this opinion to the County Administrator's Office on June 8, 1995, fully endorsing the Attorney General's opinion. On June 19, 1995, our Committee met with the Health Services Director, several members of his staff and a number of supporters and opponents on a Clean Needle Exchange Program. Our Committee regrets that the legal obstacles have caused us to agree with the Health Services Director in withdrawing his recommendation to implement a Clean Needle Exchange Program in this County. We continue to believe that the scientific evidence supports the premise that such a program, by reducing the likelihood that IV drug users will share needles, can reduce the likelihood that IV drug users will become infected with the AIDS virus through the sharing of needles, and can serve as a bridge for drug prevention efforts. The Health Services Director filed the attached report with our Committee, recommending that he be allowed to withdraw his recommendation and terminate any efforts to implement a Clean Needle Exchange Program. In view of the Attorney General's opinion and the position of the District Attorney, we believe that it would be inappropriate to proceed at this time. However, we believe that the public debate of this issue which has taken place over the past few months has been beneficial in heightening the awareness of the public to this issue and the arguments in support of and in opposition to such programs. We are encouraging the Health Services Director to continue this public education effort. • I Contra Costa County • J The Board of Supervisors HEALTH SERVICES DEPARTMENT OFFICE OF THE DIRECTOR Jim Rogers, 1st District Mark Finucane, Director Jeff Smith,2nd District �f `t°,t. Gayle Bishop,3rd District =:\.• 20 Alien Street Mark DeSauinier,4th District Martinez,California 94553-3191 Tom Torlakson,5th District r3'; �:' ti (510)370-5003 'r4- FAX(510)370-5098 County Administrator ^_ Phil Batchelor = County Administrator June 16, 1995 TO: Internal Operations Committee Board of Supervisors FROM: Mark Finucane Health Services Director SUBJECT: HIV Prevention Program and Clean Needle Exchange Following the Health Services Department's presentation to the Board of Supervisors on April 25, 1995 regarding HIV prevention and the public health policy considerations in implementation of a clean needle exchange program in Contra Costa County, the Health Services Department has summarized the community input from forums held over an extended period of time, convened three forums on this subject in the past week, and investigated the program implemented by Santa Clara County. Attached to this report is a summary of the forums held throughout the county and the content of the input received from these communities. Most of these forums were co-sponsored by the Community Substance Abuse Prevention groups and the Public Health Division AIDS Program. There was wide-spread support for implementing clean needle exchange programs as part of the existing HIV prevention outreach programs offering referrals to substance abuse treatment and medical care. The necessity of this aggressive public health intervention to reduce the extremely high rates of HIV infection among injecting drug users in our county was acknowledged by most of those attending the forums. The major concerns expressed were about the potentially mixed message this gives regarding drug use and the legal aspects of the program given the State law against possession of needles and syringes. On June 15, staff from the Health Services Department met with the Santa Clara County AIDS Health Services staff responsible for implementing and evaluating the clean needle exchange and HIV prevention program operating there. We were impressed by what appears to be the smooth operation of a well accepted community outreach program which links drug users to needed testing, drug treatment and medical services. In our previous discussions,Board members have asked several questions concerning the subject: Will a needle exchange program save lives in this County? Yes. It is our estimate that between 18 - 76 infections per year will be prevented by this program. Merrithew Memorial Hospital&Clinics Public Health • Mental Health substance Abuse Environmental Health Contra Costa Health Plan Emergency Medical Servlces • Home Health Agency Geriatrics A-345 (12194) P What is the cost of implementing the proposed needle exchange program? An estimated $10,500 per year for supplies. Existing staff would be utilized to implement this program at no additional county cost. What are the projected savings from implementing this needle exchange program? We estimate the AIDS related medical costs for one year to be between $1 million and $5 million. If we take the lower of the two figures we will save$985,000 per year in medical costs. What sources of funding are there for the program? Countyfinals with the possibility of private foundation funds. Is this the best use of our tax funds given all the priorities for funding which are facing the Board? Yes, we believe this program would save lives, promote entry into drug treatment, and reduce the cost in dollars and human life. Are there alternatives to what has been proposed and, if so, what are the advantages and disadvantages of each alternative? The alternative is to continue our existing education program which has had limited success in reaching the drug using population. What is needed in the way of a public education program in various parts of the County and how can such a program be implemented? Public education regarding what a clean needle exchange program is, how it benefits the HIV prevention efforts, and public discussion/idea exchange regarding this issue. See attached summary of discussions held. Recommendations The Health Services Department believes that clean needle exchange is an effective public health measure in reducing the spread of HIV. We also believe that public health policy considerations of this program initiative weigh heavily toward the implementation of a clean needle exchange program. During public forums held over the last four months we have seen a high level of community support, especially in communities most affected by the epidemic. Because we have not found a way at this time to overcome the legal barriers to implementation we plan not to pursue clean needle exchange implementation with county personnel and administration at this time. We plan to continue our multifaceted efforts toward HIV prevention including the collaborative development of our partnership with the community-based agencies that are most essential to reducing the spread of AIDS in our communities. In the future when we are able to legally implement a needle exchange program with county staff we will revisit this issue with you. Presentations and Community Forums on HIV Prevention & Needle Exchange Central County: May 1994 May and June 1995 Sponsored by CASA and Health Services Department (AIDS Program and Community Substance Abuse Services) South County: January and April 1995 Sponsored by CASA West County: December 1994 January 1995 May and June 1995 Sponsored by West County CSAP, Richmond Anti-Drug Task Force and. Health Services Department East County: October 1994 May and June 1995 Sponsored by Health Service Department (Community Substance Abuse Services and AIDS Program)and Substance Abuse Action Committee Community Forums (April - .Tune 1995) Pleasant Hill: April 25, 1995 - Attendance: 84 Sponsored by Community Substance Abuse Services Brentwood: May 9, 1995 - Attendance: 94 Sponsored by Community Substance Abuse Services Richmond: May 23, 1995 - Attendance: 103 Sponsored by Community Substance Abuse Services, City of Richmond., Anti-Drug Task Force Alamo: May 25, 1995 - Attendance: 75 Sponsored by Supervisor Gayle Bishop Martinez: June 13, 1995 - Attendance: 16 Sponsored by Health Services Department Richmond: June 14, 1995 - Attendance: 13 Sponsored by Health Services Department Pittsburg: June 15, 1995 - Attendance: 16 Sponsored by Health Services Department Summary of Positive Comments In favor of a needle exchange and education program ♦ Really needed by injection drug users and families. ♦ Will reduce needles in parks and streets where kids can get them. ♦ Will increase access to mobile van, STD screening, other health care. ♦ Will not increase drug use. ♦ Will prevent the spread of HIV and save lives. ♦ Cost effective - will save money from fewer AIDS cases. The cost of one syringe is 7 cents versus $120,000 per AIDS case in medical costs. ♦ Will help get people into treatment. A study in San Francisco showed that 80% of treatment vouchers are used the next day. ♦ Save "innocent" sex partners and babies ♦ Drug users can recover - no one can recover from AIDS. ♦ Need comprehensive services along with needle exchange programs - education, culturally resonant community health outreach workers and condoms. ♦ One part of solution - we need it in Contra Costa. ♦ All other counties in Bay Area are doing needle exchange and it works for them. ♦ Could prevent other diseases - abscesses, hepatitis. ♦ All people are worth saving - even addicts. ♦ Not everyone is ready for treatment and not enough treatment-give people tools to protect selves and families. ♦ A way to reach people (hard core drug users) who we don't reach otherwise. ♦ Addiction and injection drug use is a problem throughout the county - every ethnic group and economic class, men and women. ♦ Will express caring and respect for addicts - encourage self protective behaviors like not sharing needles, using condoms, etc. ♦ Addiction is a disease just like diabetes. Diabetics get prescriptions for syringes. ♦ The good outweighs the bad. ♦ Addicts use dirty syringes out of desperation because they can't find clean ones. They dig them out of trash cans, etc. ♦ We need to deal with what is happening now, not what we think should be happening - illegal doesn't stop it. ♦ As a civilized country, we cannot ignore people dying when we can prevent it. ♦ We cannot legislate morality - for example, prohibition of alcohol failed. ♦ As a society, we try to eliminate hazardous situations as much as possible, needle exchange is no different than any other hazard. ♦ Until we don't have an effective tool to deal with this program, needle exchange is one that will keep the users alive long enough to seek treatment and keep them from spreading HIV. Concerns expressed: ♦ Mixed message - will give young people wrong message about discouraging drug use. ♦ Illegal - except with prescription. ♦ Legal liability if the county does it. For example: If someone exchanges a needle and then commits a crime. ♦ Will increase drug use. ♦ Will increase number of discarded needles. ♦ Will increase crime - South County concerned ♦ We need to focus all of our efforts on fighting drugs. ♦ Inappropriate use of tax dollars. ♦ What is in it for those who don't use drugs? ♦ Will it affect people with priors - 3 strikes and you are out? ♦ Need to took at how to keep citizens safe, not drug users. ♦ AIDS - self-inflicted epidemic. ♦ County predictions of AIDS cases are wrong - in fact, the epidemic is really going down. ♦ Evidence is flawed - use self-report of drug addicts. ♦ What evidence do we have that people will cross the "bridge" to utilize other health and social services? ♦ We see people dying from drug use and don't feel compassionate to assist people in their drug use by giving them syringes. ♦ Needle exchange will not reduce sharing of syringes. r NEEDLE EXCHANGE EDUCATIONAL INITIATIVE ::::::::::::.::.::::.:......::::.::...::::::..:...:..:. :::::::.::::.:.::::::::::::::::::::::::::::..:..........:........:::::................ u..caste.....:.::.....::: :.:::.::. : 3`.:::. :.....................................:::.::::::::.::::::::.:.:.:.::.::::.:::::::::::::::::::::::::: ......::::..: ::.::..::::.:,.::.;::::::::.;:.::::.:;,,:::::.::.::;._::... . . :....::..............,...:...:..:............ .::...:.....:...... .....:............:...........:.:........:...:..........::.. 1994 Dr. Brunner presentation to Substance Abuse Advisory Board Heated group debate, individual May [SAAB]on AIDS/HIV infection among drug users, introduces SAAB members seek information , •'" 1 a three prong needle exchange program proposal. SAAB invites law enforcement presenter to discuss negative impact (f� on communities that have needle exchange programs. May AIDS/HIV Report,and needle exchange information distributed Membership (269) represent 38 ..1 August to SAAB and Partnership members. AIDS/HIV problem and treatment and prevention needle exchange proposal informally debated at regional organizations; 11 police departments; coalitions. Sheriffs department; 5 faith community; 15 business leaders; 4 neighborhood councils; DATE w programs from all county school districts; 3 elected officials; youth; recovery community;and volunteers. June Dr. Brunner invited to present needle exchange program SAAB votes to support needle proposal.Concern about the high HIV infection rates among drug exchange proposal.Letter to Board of users.prompts members of SAAB,who are also members of the Supervisors. county-wide Partnership Forum and two of the Partnership Regional Coalitions, to encourage SAAB to support the need for a needle exchange program. July At the Partnership Forum level a determination is made to add A task force is formed to develop a the needle exchange to the Forum's county-wide environmental strategy to approach and introduce the prevention policy strategies. issue at the local coalitions. August In collaboration with Partnership leadership, the task force Presentations: 5 regular coalition December introduces Needle Exchange Initiative to regional coalitions and meetings, 1 in each region and 4 in distributes informational materials.Presentations to Central and South and Central CASA's South county CASA's [Community Against Substance Abuse] 1995 In collaboration with the AIDS Program, task force members Presentations:Once in West,Central, January make educational presentations to regional coalitions. East,twice in South county. April April-May In collaboration with SAAB., the AIDS Program and the Attendance: Partnership Coalitions,task force convenes community forums East 94;Central 84; West 103=281 in each region.Richmond Anti-Drug Task Force,the East County Violence Task Force,the Substance Abuse Division,and other community groups co-sponsor these events. February AIDS Program presentation to Substance Abuse Advisory Board. Task force members draft state of emergency proposal. March Task force members ask SAAB to endorse state of emergency SAAB endorses state of emergency declaration. PEHAB, HIV Network, AIDS Consortium also and recommends implementation of endorse declaration. Document goes to Board of Supervisors. needle exchange program. COMMUNITY FORUMS PUBLIC COMMENTS • county-run proposal acceptable with illegal; what happens when someone is community/volunteer component caught with possession and is violating parole? issues of parolees-why not legalize needles? • ensure education and link to treatment; misuse of public funds; fund treatment educate addicts about treatment and not addiction the public about the program • helps people waiting or not ready to be promotes conflicting message to in treatment; could facilitate entering young people; promotes drug use; treatment okay to use because it is condoned by program • first educate then offer needles!; fund treatment not addiction; establish essential to have local buy in treatment priorities • more information/education small local dilutes message on prevention and forums recovery: other risk factors than needles, other risk groups than injecting drug;users • research shows decrease HIV it doesn't stop influx of drugs into infection; save lives; provide communities decimated by drugs and opportunity to be treated violence • reduce risk of needles discarded; three strikes you're out consequences needles acquire value for exchange; in communities impacted by drugs, less risks for children to be exposed to crime and violence, who will go to discarded needles in parks, etc. prison if caught on parole with possession? - Off ice of District Attorney Contra DstrictT.A"omeyeY Court House, Fourth Floor Costa P.O. Box 670 Martinez,California 94553-0150 �O��t` (510)646-4500 �/ "t COUN'� TO: Claude Van Marter Assistant County Administrator FROM: Gary T. Yancey District Attorney DATE: June 8, 1995 SUBJECT: Request for Input to 1.0. Committee on Needle Exchange Program ------------------------------------------------------------------------------------------------------------------ Attached is the June 7, 1995, Opinion of the Attorney General, State of California, on the legality of needle exchange programs. The opinion clearly and emphatically concludes that: 11. The institution of a needle exchange program for drug users by a county to prevent the spread of the-HIV virus would violate state law. 2. A declaration of a public health emergency by a county would not allow it to institute a needle exchange program for drug users. 3. The use of the "defense of necessity" by a county would not allow it-to institute a needle exchange program for drug users.' The independent research by my office on the subject reaches the same conclusion. I consider the opinion to be binding upon the Sheriff and District Attorney's offices. California Attorney General Dan Lungren recently stated that "All citizens have a right to impact the laws of our society through the legislative process, but once the laws are passed, we have a responsibility to obey them -- all of them." I agree with that statement and I feel that it is particularly inappropriate for county officials to encourage or to force county employees to engage in illegal activity, regardless of the lofty motives behind such conduct. SUBJECT: Request for Input to I.O. Committee on Needle Exchange Program Page 2 ------------------------------ ----------------------------------------------------------------------------- Thus, it appears to me that until a proper legal basis for a needle exchange program can be established, it is premature to expend extensive time and resources debating the actual merits of the proposal. GTY/dwc cc: Sheriff County Counsel 916 324 8835 Jun U.1135 1u:4i rvo .uu4 r .uz TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL Statc of California DANIEL E. LUNGREN Attorney General OPINION No. 94-1104 of Juno 7, 1995 DANIEL E. LUNGREN Attorney General ANTHONY S. Da VIGO . Deputy Attorney General : THE HONORABLE BARBARA ALBY, MEMBER OF THE CALIFORNIA STATE ASSEMBLY, has requested an opinion on the following questions: 1. Would the institution of a needle exchange program for drug users by a county to prevent the spread of the HIV virus violate state law? 2. Would a declaration of a public health emergency by a county allow it to institute a needle exchange program for drug users? 3. Would the use of the "defense of necessity" by a county allow it to institute a needle exchange program for drug users? 1. 94-1104 916 324 8835 Jun 8.95 1U:41 No .uu4 r.ua CONCLUSIONS 1. The institution of a needle exchange program for drug users by a county to prevent the spread of the HIV virus would violate state law. 2. A declaration of a public health emergency by a county would not allow it to institute a needle exchange program for drug users. 3. The use of the "defense of necessity" by a county would not allow it to institute a needle exchange program for drug users. ANALYSIS A county board of supervisors has proposed the adoption of a program to furnish sterile hypodermic syringes to drug users for personal use in order to preventthe spread of the HIV virus within the county. The three questions presented for resolution concern whether such a program would be lawful under any circumstances. 1. Conflict With State Law The first inquiry is whether the institution by a county of a needle exchange program for drug users would violate state law. We conclude that it would. In A & B Cattle Co. v. City of Escondido .(1987) 192 Cal.App.3d 1032, the court held that a city could not license the sale of drug paraphernalia to adults. It summarized the following principles of law that we find to be applicable here: "`Under the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law.' [Citation.] More specifically, article Xl, section 7 of the California Constitution provides: 'A county or city may make and enforce within it,,, limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.' Where local legislation conflicts with general law, -it is void. [Citations.] `Apart from this limitation; the, "police power [of a. county or city] under this provision . . . is as broad as the police power exercisable by the Legislature itself."' [Citations.] "A local legislative enactment will be invalidated when it duplicates, contradicts, or infringes upon an arca completely occupied by general law, either expressly or by legislative implication. Moreover, where the subject 2• 94-1104 -916 324 8835 Jun 8.95 1U:42 Ivo .UU4 r.U4 matter of the local legislation has been entirely occupied by state general law, supplementary or complementary local legislation, even pertaining to matters otherwise properly characterized as municipal In character is nmhihitodl [Citations,]" (td., at p. 1038.) In applying these principles to the proposed needle exchange program, we find that Health and Safety Code section 11364.7, subdivision (a),' provides as follows: "Except as authorized by law,-any person who delivers, furnishes, or transfers . . . drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to . . . inject . . . or otherwise introduce into the human body a controlled substance . . . in violation of this division, is guilty of a misdemeanor." The term "drug paraphernalia" includes hypodermic syringes, needles, and other objects designed for use in injecting controlled substances into the human body. (§ 11014.5, subd. (a)(7).) The term "person" includes an individual, corporation, government or governmental subdivision or agency, or any other legal entity. (§ 11022.)' The introductory clause "Except as authorized by law" may not be construed to encompass any local ordinance to the contrary. As noted below (fh. 4, post), legislation which would have authorized even a carefully circumscribed county pilot project twice failed enactment. The Legislature's enactment of sections 11014.5 and 11364.7 demonstrate its intent to establish a total ban on the distribution of drug paraphernalia, so as to occupy the entire regulatory field to the exclusion of local legislation. (A & B Cattle Co. v. My of Escondido, supra, 192 Cal.App.3d at 1040.) As explained by the court in the Escondido case: "In fact, itis difficult to believe the City is serious in its attempt to defend this ordinance which, on its face, purports to permit businesses to sell goods which are completely banned by state law, so long as the City issues a special local business license. . . . "Indeed, local law enforcement officers must enforce state and local laws alike, and any sale or distribution of unlawful drug paraphernalia subjects 'Unidemitied section references herein are to the Health and Safety Code. 'Jt is unlawful for any person not licensed as a registered pharmacist to dispense any dangerous device,Including hypodermic syringes or needles. (Bus. & Prof. Code, §§ 4034.5, 4050.) It Is unlawful for any person to furnish hypodermic syringes or needles without a permit issued by the State Board of Pharmacy,except as otherwise provided. (Bus. do Prof. Codc, §§ 4140, 4382.) The term "person' for purlxw s of this licensing scheme includes political subdivisions of the state. (Bus. &Prof.Code, §4039.) 3. 94-1104 916 324 8835 Jun 8.95 10:43 No -004 P .05 the seller or distributor to arrest and fine under state law regardless whether licensed by the City." (Id., at p. 1039.) - While sections 11014.5 and 11364.7, as interpreted by the court in the Escondido decision. control our analysis here, we note that in a different statutory scheme pertaining to county health officers, section 450 provides: "The board of supervisors of each county shall take such measures as may be necessary to preserve and protect the public health in the unincorporated territory of the county, including, if indicated, the adoption of ordinances, regulations and orders not in conflict with die general laws . . . ." The exercise of the power to prescrve and protect the public health by a county board of supervisors is expressly limited in section 450 to those measures which are not in conflict with the general laws of the state, including sections 11014.5 and 11364.7. In answer to the first question, therefore, we conclude that the institution by a county of a needle exchange program for drub users to prevent the spread of the HIV virus would violate state law. 2. Public Health Emergency The second inquiry is whether a county may implement a needle exchange program for drug users if it first declares a "public health emergency." We conclude that it may not Under the California Emergency Services Act (Gov. Code, §§ 8550-8668; "Act"), a local emergency may be proclaimed by die governing body of a county or city or by an official so designated by ordinance. (Gov. Code, § 8630.) In periods of local emergency, political subdivisions have full power to provide mutual aid to any affected area in accordance with local ordinances, resolutions, emergency plans, or agreements. (Gov. Code, § 8631.) The term "local emergency" is defined in the Act as follows: "`Local emergency" means the duly proclaimed existence of conditions of disaster or of-extreme peril to the safety of persons and property within,the territorial limits of a county . . . caused by such conditions as . . . epidemic . . . or other conditions . . . which conditions are or are likely to be beyond the control of the services, personnel,equipment,and facilities of that political subdivision and require the combined forces of other political subdivisions to combat . . . ." (Gov. Code, § 8558, subd. (c).) 4. 94-1104 916 324 8833 Jun 8,95 10:46 No .UU4 r.Ub Tbc purpose of a declaration of local emergency is thus to provide for the rendering of mutual aid by the state government and all its departments and agencies and by the political subdivisions of the state in carrying out the purposes of the Act. (Gov. Code. § 8550.) During a local emergency, die governing body of a political subdivision "may promulgate orders and regulations necessary to provide for the protection of life and property. . . ." (Gov. Code, § 8634.) In addition, for the purpose of exercising its power to preserve and protect the public health (§450), each county governing,board is required to appoint a health officer (§ 451), who "may take any preventive measure which may be necessary to protect and preserve the public health 1rom any public health hazard during any . . . `local emergency,' as defined by Section 8558 of the Government Code, within his jurisdiction" (§ 458)? There can be little doubt that the proposed needle exchange program would be intended by the county to "provide for the protection of life and property" and "protect and preserve file public health" within the meaning of section 458 and Government Code section 8634. The issue remains, however, whether the program would conflict with the laws of the state, even under a declaration of a public health emergency. Specifically, do the broad powers granted under those sections, i.e., "may promulgate orders and regulations necessary to provide for the protection of life and property . . ." (Gov. Code. § 8634) and "may take any preventive measure which may be necessary to protect and preserve the public health . . ." (§458), fall within the "[e]xccpt as authorized by law" provision contained within the prohibition of section 11364.7, subdivision (a), quoted above? If so, a needle exchange program would not constitute a violation of the latter statute. In resolving this issue, we note first that the broad powers based on a declaration of local emergency cannot be construed literally to encompass "any" orders, regulations, or preventive measures in violation of state law or policy, (See 75 Ops.Cal.Atty.Gen. 256, 258 (1992).) Where the means by which an official duty is to be accomplished is not prescribed, any means may be used which is both reasonable and suitable. (Harris v. Gibbins (1896) 114 Cal. 418, 421; 73 Ops.Cal.Atty.Gen. 156, 164 (1990).) Accordingly, in the execution of a particular statutory responsibility imposed by section 458 and Government Code section 8634,those charged with their administration must sSactlon 3110 also provides: Mach health officer knowing or having reason to believe that any ease of the diseases made reportable by regulation of the State Department of Health Services, or arty other contagious, infectious or communicable disease exists, or has recently existed, within the territory under his jurisdiction, shall take such measures as may be necessary to prevent the,spread of the disease or occurrence of additional cases." 5. 94-1104 916 324 8835 Jun 8 .95 1U:44 No .UU4 r .Ur take cognizance of and effectuate, or at least refrain from acting in derogation of, other valid governmental policies. (Cf. Zabel v. Tabb (5th Cir. 1970) 430 F.2d 199, 209; 74 Ops.Cal.Atty.Gen. 122, 124-125,n.2(1991);73 Ops.Cal.Atty.Gen., supra, 163.) It is well settled that statutory provisions must be construed with reference to the whole system of law of which they are a part so that all may be harmonised and have effect. (Walnut Creek Manor v. Fair Employment & Housing Cont. (1991) 54 Cal.3d 245, 268; Dyna Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387; Gillett-Harris- Duranceau &Assoc. v. Kemple (1978) 83 Cal.App.3d 214, 220.) Second, it is apparent from a comparison with the terms of section 450.which arc not based on any declaration of emergency, that the broad terms of section 458 do not portend a radical departure from the powers otherwise granted and limited. Thus the power granted in section 450, i.e., "each county shall take such measures as may be necessary to preserve and protect the public health . . ." is not only expressed in substantially equivalent terms as in section 458, but is also expressly limited to such measures as are "not in conflict with general laws." Such broad terms, then, whether or not in the context of a local emergency, simply do not suggest an authority to disregard the general laws of the state. Accordingly, section 450, as well as section 452 directing county health officers to "enforce and observe . . . [s]tatutes relating to public heald)," are generally applicable in the absence of some unequivocally stated exemption. Third, the Legislature has provided an illuminating example of the language it uses when it grants an exemption from compliance with state law. Government Code section 8571 prescribes the powers of the Governor during a state of emergency or state of war emergency (Gov. Code.,§ 8558, subds. (a). (b)) as follows: "During a state of war emergency or a state of emergency the Governor may suspend any regulatory statute, or statute prescribing the procedure for conduct of.state business . . . where the Governor determines and declares that strict compliance with any statute . . . would in any way prevent, hinder, or delay th-c mitigation of the effects of the emergency." Hence, when the Legislature has intended to authorize the suspension of state laws, it has done so in specific and unmistakable terms, rather than by inference or implication. It may reasonably be inferred that the absence of any such unequivocal provision in section 458 or Government Code.section 8634 indicates an Intent not to confer such authorization upon local entities. (See $aferw. Superlor.:Court.(1975).15-Ca1.34.230, 2313 75 Ops.Cal.Atty.Qen., . supra, 259.) That such an authorization for suspension should be unequivocally expressed is also consistent with the rule that exceptions to the general applicability of a statute. (e.g., prohibiting the furnishing of drug paraphernalia) should be narrowly construed. (City of Lafayette v. East Bay Municipal Utilities District (1993) 16 Cal.AppAth 1005, 1017; 78 Ops.Cal.Atty.Gen. 31, 36 (1995).) G. 94-1104 916 324 8835 jun b 033) to*-45 ivu .uU4 r .vo Finally, the powers granted by section 458 and Government Code section 8634 are expressly tied to the declaration of a local emergency. Such an emergency may not be declared simply as a basis for justifying the circumvention of state law by county officers. The conditions sought to be remedied by the county's proposed program are neither local in scope nor an "emergency" within the purview of the Act. With respect to the issue of locality, the containment of the HIV virus is manifestly a master of statewide concern involving a "comprehensive, coordinated government action against AIDS and HN infection." .(§ 195.) The Legislature has expressly declared that "[t]he rapidly spreading AIDS epidemic poses an unprecedented major public health crisis in California, and threatens, in one way or another, the life and health of every Californian." (§ 199.45, subd. (a).) The Legislature has further found that "[t]he best hope of stemming the spread of the AIDS virus among the general public is the development of an AIDS vaccine to develop an immunity to exposure." (§ 199.45, subd. (b); see also §§ 199.52, 199.55.) In enacting the California AIDS Program, the Legislature intended, among other things, to (1) fund specified pilot AIDS education programs, clinical research, studies, and program evaluations, (2)promote an aggressive community-based HIV infection prevention program in all communities and areas where behaviors and prevalence indicate high risk of HIV infection, and (3) encourage local programs to involve racial and ethnic minorities in a leading role to plan the development, implementation, and evaluation of preventive education, HIV testing, delivery of care, and research activities that are necessary to the formation of a comprehensive, community-based, culturally sensitive HIV infection prevention strategy. (§ 199.70.) The Legislature has also provided that pilot programs to reduce the spread of AIDS through residential detoxification and outpatient detoxification and treatment services for intravenous drug users shall be initiated through local agency operated AIDS-related substance abuser programs. (§ 199.76.)4 Further, the declaration of a local "emergency" within the meaning of Government Code section 8558 is reserved for the rendering of mutual aid under circumstances where the emergency conditions are or are likely to be beyond the control of the county's services, personnel, equipment, and facilities, and which require the combined forces of other political subdivisions to combat. . The proposed program in question, however, does not contemplate any mutual aid, but rather is predicated upon the county's utilization of its own services, personnel, equipment, and facilities. 'During the 1991-1992 Regular Session,the Legislature presented the Chfvcrnor with legislation which would have established the Clean Needle and Syringe Exchange Pilot Project(Assembly Bill No.2525,Senate Bill No. 1418);7'lte Governor vetoed the legislation on September 30, 1992. Similarly, during the 1993-1994 Regular Sosslon, the Legislature passed Assembly 11111 No. 260, which the Governor vetoed on October 8, 1993. Of course, the power to approve ar veto bilis passed by both houses or the Legislature Is an integral part of the legislative process. (Lukens v. Nye(1909) 156 Cal.498.) 7. 94-1104 . 916 324 8835 Jun U,Vt) tu:µto no .uuu r .u7 In addition, an emergency as contemplated in the Act is essentially temporary In nature. Government Code section 8630 provides in part: ". Whenever a local emergency is proclaimed by an official designated by ordinance, the local emergency shall not remain in effect for a period in excess of seven days unless it has been ratified by the governing body. The governing body shall review, at least every 14 days until such local emergency is terminated, the need for continuing the local emergency and shall proclaim the termination of such local emergency at the earliest possible date that conditions warrant." The proposed county program, on the other hand, is indefinite in length and not of such a nature that the need for continuation would warrant review every 14 days. Accordingly, it is concluded that a county may not Institute a needle exchange program for drug users pursuant to a declaration of a public health emergency. 3. Defense of Necessity The third inquiry is whether a county may institute a needle exchange program for drug users in reliance upon the "defense of necessity."3 We conclude that it may not. The Legislature has never articulated a "defense of necessity." With respect to the applicability of defenses for criminal conduct generally, the court in Keeler v.Superior Court (1970) 2 Cal-3d 619, 632, stated in part: "`In this state the common law is of no effect so far as the specification of what acts or conduct shall constitute a crime is concerned. (Citations.] In order that a public offense be committed, some statute, ordinance or regulation prior in time to the commission of the act, must denounce it; likewise with excuses or justifications -if no statutory excuse or justification apply as to the commission of the particular offense,neither the common law nor the so-called "unwritten law" may legally supply it.' (People v. Whipple (1929) 100 Cal.App. 261, 262.)" Nevertheless, the court in People v. Lovereamp (1974) 43 Cal.App.3d 823, 831-832, concluded that the defense of necessity was viable under the following circumstances when a defendant is charged with the offense of escaping from prison: sIn addition to the laws previously referenced,Penal Code section 424 provides that a public officer who uses public moneys for any purpose not autitorized by law is punishable by imprisonment and disqualified from public office. 8. 94-1104 816 324 8835 Jun is,yo iu;4o iw .uu4 r . Lu "From all of the above, we hold that the proper rule is that a limited defense of necessity is available if the following conditions exist: (1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future; (2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory; (3) There is no time or opportunity to resort to the courts; (4) There is no evidence of force or violence used towards prison personnel or other `innocent" persons in the escape; and (5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat." The defense has been asserted, although unsuccessfully, in subsequent prison escape cases. (E.g., People v. Condley (1977) 69 Cal.App.3d 999; People v. Wheeler (1977) 68 Cal.App.3d 1056.) With the exception of one case, People v. Pena(1983) 149 Cal.App.3d Supp. 14, the defense has never successfully been used outside of the prison context. (People v. Patrick (1981) 126 Cal.App.3d 952 [kidnap - abduction of daughter from religious cult]; People v. Velasquez (1984) 158 Cal.App.3d 418 [possession of deadly weapon in jail]; People v. Weber (1984) 162 Cal.App.3d Supp. 1 [trespass - nuclear protest]; In re Weller (1985) 164 Cal.App.3d 44 [trespass -to counter threat of nuclear war]; People v. McKinney (1986)187 Cal.App.3d 583 [assault with deadly weapon in prison]; People v.Morris (1987) 191 Cal.App.3d Supp. 8 [reckless driving - to reach the scene of a medical emergency]; People v. Beach (1987) 194 Cal.App.3d.955 [child stealing-fearing safety of child]; People v. Heath (1989) 207 Cal.App.3d 892 [burglary - under threat of death from narcotics creditor]; People v. Garziano (1991) 230 Cal.App.3d 241 [criminal conduct during demonstration at abortion clinic].) In People v. Pena,supra, 149 Cal.App.3d Supp. 14, the defendant was charged with driving under the influence of intoxicating liquor. He claimed that he was driving only in order to follow and protect his girlfriend who was being driven home in a sheriff's patrol vehicle. On appeal, it was held that the trial court should have instructed the jury on the defense. However, that decision was thereafter criticized in People . v. Heath, supra, 207 Cal.App.3d at 901, where the Pena court's confusion of the defenses of duress and necessity was found to be "clearly incorrect," and in People v. Garziano, supra, 230 Cal.App.3d at 243, where the Pena court's articulation of the necessity factors was found to be "excessively expansive." In view of the foregoing, it is-apparent that the defense of necessity, assuming its legitimacy, may not be applied to the distribution of drug paraphernalia pursuant to a county's needle exchange program under the guise of public health. The concept of promoting the public health by facilitating the use of and addiction to narcotics at the very 9. 94-1104 916 324 8835 Jun ts.yto iu:ar NO .uuµ r . ii least involves multi-faceted public policy considerations,6 No case has suggested that the defense of necessity may be applied to the promotion or facilitation of conduct by others which is itself unlawful. The elements of the purported defense as defined by the courts are simply inapposite: a specific threat of death or substantial injury in the immediate future; the lack of time for complaint to the authorities; and the lack of opportunity to resort to the courts. As stated in the concurring opinion in In re Weller, supra, 164 Cal.App.3d at 51: "As to this case, however, it is clear that there is no defense by whatever naive available to those who trespass or engage in other unlawful conduct to protest governmental policy. Whether the defense is characterized as `necessity' or `duress' or some hybrid of the two, '[u]ndcr any definition of these defenses one principle remains constant: if there was a reasonable, legal alternative to violating the law . . . the defenses will fail.' (United States v. Bailey (1980) 444 U.S. 394, 410: see, e.g., United States v. May (9th Cir. 1980)622 R.2d 1000, 1008-1010[necessity defense no available to defendants who protest Trident missile system at naval submarine base by trespassing].) There were other lawful forms of protest available to petitioners, and the trial court correctly rejected their defense of necessity." In our system of government, the resolution of competing public policy considerations, and particularly those of statewide concern, rests with. the Legislature. It is not incumbent upon each political subdivision to invoke the excuse of necessity for the implementation of its own contrary resolutions. A county possesses and may exercise only such powers as are granted to it by the Constitution or by statutes, together with those powers as arise by necessary implication from those expressly granted. (Gov. Code, § 'For example.in his message of October 8. 1993, vetoing Assembly Hill No.260.the Governor stated in part: "There is an even more basic Lmuo presented. Tito real question put by AR 260 is whether the hoped-for reduction in needle-transmitted HIV infeellon justirms sending a mixed message that will threaten to undormine the credibility of all of society's other anti-drug efforts - especially those preventive education efforts aimed at dissuading young audiences tram choosing not to engage in drug use. "In blunt terms, Is it worth reducing the risk of infection to intravenous drug users at the potentially far greater cost of undermining all our outer preventive anti-drug efforts and suffering as a result an enormous increase in the number of young people who make a wrong choice that leads to an enormous increase in addicts? "if we are going to demand that young people exercise personal responsibility,if we say that they must suffer tate consequences of their personal choices, what are they to think when in the next breath we give formal sanction to a project which facilitates drug use?" 10. 94-1104 916 324 8835 Jun 8 ,95 10:4-e NO .UU4 V. 1L 23003; Byers v. Board of Supervisors (1968) 262 Cal.App.2d 148, 157; 77 Ops.Cal.Atty.Gen. 82. 82-83 (1994).) It is concluded that a county may not institute a needle exchange program for drug users in reliance upon the "defense of necessity." Il. 94-1104 DATE: Cv 2 REQUEST TO SPEAK FORM r (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. NAIME: /JT/- PHONE: 8'37- 22,56 ADDRESS: SgLI ao-$13/.E Pe/JOE Cny: /]jaA/I Z LSE I am speaking formyself OR organization: C'em/T2-4 CosT,�/I�I'aa��cA�u/�ss a�Y NAME OF ORGAN17_�T10-0 Check one: I wish to speak on Agenda Item # D l3 My comments will be: general ✓ for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider. '7 DATE: eo REQUEST TO SPEAK FORM • (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. NAME: �©W,&^lS PHONE: 34 -�' gl� ADDRESS: s3;.1 6) 1 -�%9 Yl^c3 /`�✓ Crnr: 'Ct G�1<�r7�,cGY I am speaking formyself OR organization: Check one: NAME OF ORGAN17-M-I0X) I wish to speak on Agenda Item # iJ. 2 3 . 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