The City of Federal Way may soon make reckless use of fentanyl in public spaces illegal with a new ordinance.
By a unanimous city council vote, the ordinance passed its first read on April 19. The ordinance’s second read and enactment is expected at the next Federal Way City Council meeting Tuesday, May 3.
The ordinance (Council Bill 813) makes the reckless use of fentanyl in public spaces a gross misdemeanor, punishable by up to 364 days in jail, a $5,000 fine or a combination of both.
“The focus on fentanyl in this ordinance is because of that level of toxicity that it does hold and the potential danger that it presents not only to the person consuming it … but also for people who may be surrounding that person — innocent bystanders if you will,” said Joanna Eide, assistant city attorney for Federal Way.
Reckless use is defined as when someone intentionally combusts, or exhales the smoke of, a substance the person knew or reasonably should know contains or is contaminated with fentanyl within city limits.
The substance must be confirmed to be contaminated with fentanyl by testing, and the ordinance applies when the substance is smoked in a public place within 10 feet of another person or in an enclosed public space with another person, according to the city.
Public spaces include, but are not limited to, public conveyances, parks, transit spots and other places where members of the public frequent.
The ordinance follows similar guidelines to the state’s reckless endangerment laws.
“That’s because using fentanyl in a second-hand exposure to the public is such a high-risk activity that no reasonable person would do it,” Eide said, quoting the ordinance, at the meeting.
Having this ordinance makes it possible for police to contact any person in public who is smoking a substance suspected of containing fentanyl, said Federal Way Deputy Police Chief Kyle Sumpter.
“To any degree that this ordinance gets somebody to not smoke it in public, it is a successful ordinance, even if we cannot count the numbers so to speak, “ Sumpter said at the meeting.
Due to the “super toxicity” of the synthetic drug, Federal Way officers do not test fentanyl in the field, he said. Instead, suspected fentanyl drugs are sent to the Washington State Crime Lab for evaluation.
An amendment to the Federal Way ordinance allows for the police department to submit suspected samples to a toxicology lab, rather than specifically to the Washington State Patrol (WSP) Crime Lab due to time concerns.
The type of evidence most likely to be collected by a police officer investigating this crime is a piece of charred tin foil, Sumpter explained in a follow-up email to council.
Due to the Blake decision in 2021, far less drug evidence is submitted to the crime lab for testing, Sumpter wrote.
“In Washington’s current environment, the lab can easily have results to us within a month,” Sumpter wrote. “That’s a conservative estimate. It is normally now three weeks, but that fluctuates based on case load at the time of submission.”
The ordinance is the first of its kind in the Puget Sound region, according to the city. It protects “bus drivers, passengers, and the public from the dangerous and deadly smoking of fentanyl in public spaces,” according to the city.
The department of health said more than half of these deaths are due to fentanyl. Fentanyl overdose deaths have increased about 10-fold since 2016, according to the data.