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HomeMy WebLinkAbout6.2 Muni Code Drug Paraphernalia C~lY CllE~[}{ fu~e # D~~[Ql{~[Q] AGlE~DA STAlEME~T c~nr COU~C~l MIEIET~~G DA lIE febnnary 5, 2008 SUBJECT ATTACHMENTS RECOMMJENDA TliON 1 ~; 4 5 lFliNANCliAL STATEMENT None DESCRJ[PTliON Repeal of Dublm Muruclpal Code Chapter 4 24 (Drug ParaphernalIa) Report Prepared by Elzzabeth H Sliver, Cay Attorney and Stephen MUZIO, Assoczate Attorney 1 OrdInance Repealmg DublIn MunicIpal Code Chapter 4 24 relatIng to Drug ParaphernalIa Current Ordmance 2 ReceIve Staff presentatIOn, Open publIc hearmg, ReceIve publIc testimony, Close publIc heanng and delIberate, WaIve readmg and INTRODUCE the OrdInance Repealmg Chapter 4 24 of the DublIn MurucIpal Code relatmg to Drug ParaphernalIa At Its March 22, 2006 Goals and Objectives meetIng, the City CouncIl revIewed and approved WIth high prIOrIty the comprehensIve update to certaIn chapters of the Dublm MUnIcIpal Code (DMC) One chapter proposed for reVIew IS DMC Chapter 4 24, which prohIbIts the dIsplay and dIstnbutlOn of drug paraphernalIa Staff has reviewed the ordmance and determmed that thiS Chapter COnflIctS With State law and should be repealed ANAlL YSIS State lLaw Preemption In 1983, the CalIfOrnIa LegIslature enacted two laws regulatmg drug paraphernalIa Health and Safety Code ("H&S") ~~ 110145 and 113647 In 1987, a CalIfOrnIa appellate court held that by enactIng these statutes, the LegIslature had demonstrated ItS "mtent to establIsh a total ban on the manufacture and distrIbutIOn of drug paraphernalIa m CalIfOrnIa, so as to occupy the entIre regulatory field to the exclUSIOn COPY 1'0 Page 1 of3 looa. liTEM NO rv of local legIslation " A&B Cattle Co of Nevada v City ofEscondIdo, 192 Cal App 3d 1032, 1041 (1987) Where a partIcular "field," or area oflaw, has been occupIed by State law, local regulation of the field IS mvahd unless It IS found to regulate a different field This IS true even where the local legIslatIOn duphcates, supplements or complements State law State preemptIOn through occupatIOn of the field can be either express or ImplIed ImplIed preemption occurs when a court, lookmg at "the whole purpose and scope of the legIslatIve scheme" (CandId EnterprIses.Inc v Grossmont UnIon HIgh School DIstnct, 39 Cal 3d 878, 886 (1985)) determmes that the Legislature mtended to occupy the field In A&B Cattle Co of Nevada v CIty of EscondIdo, supra, the court heard a challenge to a murucIpal ordmance requlflng vendors of drug paraphernalIa to be lIcensed and to keep records of paraphernaha sales The plamtIffs argued that the State LegIslature, m enactmg H&S sectIOns 110145 and 1134647, had preempted local regulatIOn of drug paraphernalIa The CIty argued that ItS ordmance dId not conflIct With State law The court held, m part, that the laws of both the CIty and State "burden the sale of drug paraphernalIa Where state law absolutely prohibIts the sale of certam merchandIse on pam of crImmal penalty, the CIty cannot Impose addItional penalties for the same conduct" DefinIng the field occupIed by state law IS often a cruCIal step m determmmg whether and to what extent a CIty may regulate certam actiVIties Here, the court defined the field qUIte broadly, statmg that the LegIslature had "show[n] ItS mtent to preempt the field of drug paraphernaha regulatIOn to the exclUSIOn oflocal ordmance" A&B Cattle Co of Nevada v CIty of EscondIdo, supra 192 Cal App 3d at p 1042 Thus, State law preempts municIpal regulation m the field of "drug paraphernaha regulatIOn" Chapter 4 24 was added to the DMC m 1982, one year prIor to the enactment of Health and Safety Code ("H&S") ~~ 110145 and 113647 and five years prIor to the CIty of EscondIdo deCISIOn discussed above Impact on DublIn Ordmance H&C ~~ 110145 and 113647 cover most If not all of the behaVIOr and actiVIties prohibIted by the CIty'S ordmance H&S ~ 110145 defines "drug paraphernalIa" and establIshes CrIterIa for courts to conSIder when determinIng what wIll constItute drug paraphernalIa H&S ~ 11364 7 makes It a misdemeanor for anyone to dehver, furmsh, transfer, possess, or manufacture wIth mtent to delIver, furmsh, or transfer drug paraphernalIa, proVIdes those who are over 18 years of age and VIOlate these prOVISIons by delIverIng, furnIshing or transfemng paraphernaha to a mmor at least 3 years theIr Juruor may be pumshed by a fine of not more than $1,000 or by ImprISOnment of not more than 1 year, or both, declares the VIOlatIOn of ItS prOVISIOns IS cause to revoke any busmess or lIquor lIcense, and, speCIfies that all drug paraphernalia defined by sectIOn 110145 IS subject to forfeIture and seIzure by any peace officer We have Identified only one scenano m whIch the State law outcome would be dIfferent than the outcome under DublIn Chapter 4 24 SectIOn 4 24 040, regulatmg the "dIsplay" of paraphernaha, can be construed to prohIbIt such a dIsplay even where the paraphernaha IS not offered for sale In the unlIkely event that a busmess dIsplayed, but dId not sell, paraphernaha It would be subject to revocatIOn of ItS busmess lIcense under the current ordmance, and the owner or operator of the busmess would face a potential mIsdemeanor charge State law does not prohIbIt dIsplays whIch are not for sale However, H&C ~ 11364 7(e) proVides for the forfeIture and seizure of all drug paraphernalIa as defined m ~ 11014 5 by any peace officer pursuant to ~ 11471 Thus, m the above scenano, although the busmess lIcense revocatIOn and mIsdemeanor charge Page 2 of3 proVlSlons contamed m Chapter 4 24 would no longer be applIcable If the CouncIl repeals Chapter 4 24, the dIsplay could still be seIzed m accordance wIth State law DublIn Pohce ServICes has revIewed Chapter 4 24 and concurs wIth the recommendatIOn to repeal Chapter 4 24 ConclusIOn Where local law regulates a field whIch the legIslature has occupIed, the local law IS mvahd We therefore recommend that the City CouncIl repeal sectIOn 4 24 of the Dublin MunIcIpal Code RJECOMMENDA TION Staff recommends that the CIty CounCIl 1) receIve Staff presentation, 2) open publIc hearmg, 3) receive publIc testimony, 4) close pubhc hearmg and dehberate, 5) Waive readmg and INTRODUCE the Ordmance Repealmg Chapter 4 24 of the Dublin MunICipal Code relatmg to Drug ParaphernalIa (Attachment 1) Page 3 of3 } ~ 4 ORDINANCE NO AN ORDINANCE OF THE CITY OF DUBLIN REPEALING CHAPTER 424 OF THE DUBLIN MUNICIPAL CODE RELATING TO DRUG PARAPHERNALIA **************** THE CITY OF DUBlLIN CITY COUNCIL DOES HEREBY ORDAIN AS FOLLOWS WHEREAS, the CahfornIa LegIslature has enacted Health and Safety Code SectIons 110145 and 113647, WhICh together prohIbIt the manufacture and dIstrIbutIon of drug paraphernalIa, and WHEREAS, CalIfornIa case law has held that, m so enactmg the aforementIOned statutes, the CahfornIa LegIslature mtended to completely occupy the field of drug paraphernaha regulation to the exclUSIOn of local regulatIOn of same field, and WHEREAS, the CIty of DublIn MUnICIpal Code Chapter 4 24 provides regulatIons prohIbItIng the dIsplay and dIstrIbutIOn of drug paraphernalIa, and WHEREAS, the CIty CounCIl deSIres to repeal thIS Chapter to ensure that the City of Dubhn MUnICIpal Code conforms to current law NOW, THEREFORE, the CIty CouncIl of the City of Dubhn does hereby ordam as follows SectIOn 1 Chapter 4 24 of the Dubhn MUnICIpal Code IS hereby repealed SectIOn 2 EffectIve Date ThIS Ordmance shall take effect and be enforced thIrty (30) days followmg ItS adoptIon SectIOn 3 Postmg The CIty Clerk of the CIty of Dublm shall cause thIS Ordmance to be posted m at least three (3) pubhc places m the CIty of Dublm m accordance With SectIon 36933 of the Government Code of the State ofCahfornIa PASSED, APPROVED AND ADOPTED thIS _ day of ,2008 AYES NOES ABSENT ABSTAIN Page 1 of2 11&>>it,;, -< ol!rj/7g ~ ATTACHMENT 1 ATTEST Carolyn Parkmson, Intenm CIty Clerk c;(1Y Jdnet Lockhart, Mayor Page 2 of2 Chapter 424 DRUG PARAPHERNALIA I~@J[I]I Chapter.6J 24 DRUG PARAPHERNAUA 3 t 4 Sections 424010 Fmdmgs 424020lraient 424030 Defimtnorns 424040 IDlsplay 424050 lDlstrubUltBorn 424060 Revocation of bUlsmess Incense 424070 Voolatlon-Penalty 4 24 010 Fmdmgs The Illegal use of controlled substances within the City creates serious SOCial, medical and law enforcement problems, and constitutes a nUisance hazardous to the health, and welfare of the Citizens of the city (Ord 14 9 8, 1982) 424020 Intent A The display of drug paraphernalia In retail stores within the City, and the distribution of such paraphernalia intensifies and otherwise compounds the problem of Illegal use of controlled substances within thiS community A ban only upon the display and distribution of drug paraphernalia to persons under eighteen (18) years of age would not be practical A person who displays or distributes would have difficulty determining who could lawfully view or receive drug paraphernalia B Law enforcement agencies would be subjected to added enforcement burdens by adding age of a person who views or receives paraphernalia as an element of a prohibition upon display and distribution A Significant number of high school students are eighteen (18) years of age or older It would be lawful to distribute paraphernalia to some students attendrng the same school In which the distributIOn to other students would be prohibited Permitted display and distribution to adults within the community would symbolize a public tolerance of Illegal drug use, making It difficult to explain the rationale of programs directed against Similar abuse by youth The problem of Illegal consumption of controlled substances Within thiS community IS Significant and substantial, necessitating a cessation of the encouragement to drug abuse which the display and distribution of drug paraphernalia create C ThiS chapter IS a measure which IS necessary In order to discourage the Illegal use of controlled substances Within the community (Ord 1499, 1982) 424030 Defull1ltnorns As used In thiS chapter, the follOWing terms shall be aSCribed the follOWing meanings "BUSiness" means a fixed location, whether Indoors or outdoors, at which merchandise IS offered for sale at retail "Controlled substance" means those controlled substances set forth In Sections 11054, 11055, 11056, 11057 and 11058 of the California Health and Safety Code, Identified as Schedules I through V, inclUSiVe, as said sections now eXIst or may hereafter be amended "Display" means to show to a patron or place In a manner so as to be available for viewing or Inspection by a patron "Distribute" means to transfer ownership or a possessory Interest to another, whether for conSideration or as a gratuity "Distribute" Includes both sales and gl'fts "Drug paraphernalia" means any of the follOWing when displayed, grouped, advertised or promoted for sale http //www codepubhshmg com/CAlDublm/Dubhn04/Dubhn0424 html A 1'1' ACHMEN'f 2 Chapter 424 DRUG PARAPHERNALIA Lj of 1 Any Item whether useful for nondrug-related purposes or not, which IS displayed, grouped ~ ~ with other Items, advertised, or promoted In a manner to reasonably suggest ItS usefulness In the growing, harvesting, processing, manufactunng, preservmg, Inhahng, injecting or Ingesting of mariJuana, hashish, cocaine, or any controlled substance as defined In the Health and Safety Code of the state of California, 2 Any Item, whether useful for nondrug-related purposes or not, which IS designed, decorated or adorned In a manner to reasonably suggest ItS usefulness m the groWing, harvesting, processing, mhallng, InJecting, or ingesting of marijuana, hashish, cocaine, or any controlled substance as defined In the Health and Safety Code of the state of California 3 Any Item defined by any statute of the state of California as drug paraphernalia "Patron" means a person who enters a business for the purpose of purchasing or viewing as a shopper merchandise offered for sale at the business (Ord 14 SS 1,2, 1982) 4 24 040 Display A Except as authorized by law, It shall be unlawful for any person to Wilfully maintain or operate any business knowing, or under circumstances where one reasonably should know, that drug paraphernalia IS displayed at such business B Except as authOrized by law, It shall be unlawful for any person who IS the owner of a business, an employee thereof or who works at such busmess as an agent of the owner, to Wilfully display drug paraphernalia at such business (Ord 14 S 3, 1982) 424050 Dlstll'lbLlltlor1l Except as authOrized by law, It shall be unlawful for any person to Wilfully distribute to another person drug paraphernalia, knowing, or under circumstances where one reasonably should know, that It Will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, Inject, Ingest, Inhale, or otherwise Introduce Into the human body a controlled substance In Violation of any law of the state of California (Ord 14 S 4, 1982) 424060 Revocatoon of Ibusmess license Violation of the provIsions of thiS chapter shalt constitute grounds for revocation of any bUSiness license Issued by the City to a busmess upon the premises of which the Violation has occurred Revocation of a bUSiness license shall be pursuant to procedures adopted by the City (Ord 14 S 7, 1982) 4 24 070 VoolatDon-PeD"Oalty Vlolatlon of thiS chapter shall be a misdemeanor pUnishable by eIther a five-hundred-dollar ($500) fine or SIX (6) months In the county Jail, or both (Ord 14 S 10, 1982) I~UJITJ! http //www codepublIshmg comfCAlDublInlDubhn04/Dublm0424 html 1/30/2008