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HomeMy WebLinkAbout3489 Ordinance « R a t ORDINANCE NO. 3489 AN ORDINANCE repealing Chapters 9.37, 9.75, 9.76 and 9.77 and creating Chapter 9.38 of the Pasco Municipal Code. KOREAS, certain language in Title 9 of the Pasco Municipal Code is in need of modification, correction or defining to have consistent meaning and continuity within the Code and with the Revised Code of Washington and to make the Code easier to use and understand; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON DOES ORDAIN AS FOLLOWS: § 1. Chapter 9.37 entitled "Loitering for the Purpose of Engaging in Drug-Related Activity" shall be and hereby is repealed in its entirety. § 2. Chapter 9.75 entitled "Drug Paraphernalia" shall be and hereby is repealed in its entirety. § 3. Chapter 9.76 entitled "Marijuana" shall be and hereby is repealed in its entirety. § 4. Chapter 9.77 entitled "Drug-Free Zone" shall be and hereby is repealed in its entirety. § 5. Chapter 9.38 of the Pasco Municipal Code is created to read as follows: CHAPTER 9.38 OFFENSES INVOLVING DRUGS Sections: 9.38.010 Loitering for the purpose of engaging in drug-related activity. 9.38.020 Drug paraphernalia—definitions. 9.38.030 Drug paraphernalia—unlawful conduct. 9.38.040 Marijuana—definition. 9.38.050 Marijuana—possession unlawful. 9.38.060 Sale, delivery, or possession of legend drug without prescription of order prohibited—exceptions. 9.38.070 Forfeiture. 9.38.080 Penalties—mandatory minimums. 9.38.090 Drug-free zone declared. 9.38.100 Prohibited conduct with in drug-free zone. 9.38.110 Defenses. 9.38.120 Map designating drug-free zone. 9.38.130 Chapter cumulative. 9.38.140 Severability. 9.38.010 LOITERING FOR THE PURPOSE OF ENGAGING IN DRUG-RELATED ACTIVITY. (1) It is unlawful for any person to remain in or near any thoroughfare or place open to the public, in a manner and under circumstances manifesting the purpose to engage in drug-related activity contrary to any of the provisions of RCW 69.41, 69.50, or 69.52. Loitering for the purpose of engaging in drug-related activity is a misdemeanor. (2) Among the circumstances which may be considered in determining whether such purpose is manifested are: (a) Such person is a known unlawful drug user, possessor, or seller. For purposes of this chapter, a "known unlawful drug user, possessor, or seller' is a person who has, within the knowledge of the arresting officer, been convicted in any court within this state of any violation involving the use, possession, delivery or sale of any of the substances referred to in RCW 69.41, 69.50 and 69.52, or such person has been convicted of any provision of said chapters of the Revised Code of Washington or substantially similar laws of any political subdivision of this state or of any other state; or a person who displays physical characteristics of drug intoxication usage, such as "needle tracks"; or a person who possesses drug paraphernalia as defined in Section .040 of this chapter; (b) Such person is currently subject to an order prohibiting his or her presence in a high drug activity geographic area; (c) Such person behaves in such a manner as to raise a reasonable suspicion that he or she is about to engage in or is then engaged in an unlawful drug-related activity, including by way of example only, such person acting as a "look-out"; (d) Such person is physically identified by the officer as a member of a "gang" or association, which has as its purpose illegal drug activity; (e) Such person transfers small objects or packages for currency in a furtive fashion; (f) Such person takes flight upon the appearance of a police officer; (g) Such person manifestly endeavors to conceal himself or herself or any object, which reasonably could be involved in an unlawful drug-related activity; (h) Such person refuses to identify himself or herself upon the request of an identified police officer; (i) The area involved is known to the arresting officer to be an area of unlawful drug use and trafficking on the basis of past arrests by -2- a ' the Pasco Police Department or other law enforcement agency, articuable facts known by the officer, or intelligence information gathered by the Pasco Police Department and made known to the officer; 0) The premises involved are known to have been reported to law enforcement as a place suspected of drug activity pursuant to RCW 69.52; or (k) Any vehicle involved is registered to a known unlawful drug user, possessor, or seller, or person for whom there is an outstanding warrant for a crime involving drug-related activity. These examples are not exclusive, but merely demonstrate some of the types of conduct that may be considered in determining whether an unlawful purpose or intent is manifested. (3) Unless flight by the person or other circumstances makes it impractical, a police officer shall, prior to any arrest for an offense under this chapter, allow the person an opportunity to dispel any alarm which would otherwise be warranted by requesting him or her to identify him or herself and explain his or her presence and conduct. (4) No person shall be convicted of an offense under this provision if the police officer did not comply with the preceding section, or if it appears at trial that the explanation given by the person was true and disclosed a lawful purpose. 9.38.020 DRUG PARAPHERNALIA—DEFINITIONS. For the purposes of this chapter, the words set out in this section shall have the following meanings: (1) "Controlled substance" as defined in RCW 69.50, the Uniform Controlled Substance Act of the State of Washington. (2) "Drug paraphernalia" means all equipment, products and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, the possession of which controlled substance is in violation of RCW 69.50. It includes, but is not limited to: (a) Kits used, intended for use or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived; (b) Kits used, intended for use or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances; (c) Isomerization devices used, intended for use or designed for use in increasing the potency of any species of plant which is a controlled substance; -3- (d) Testing equipment used, intended for use or designed for use in identifying or in analyzing the strength, effectiveness or purity of controlled substance; (e) Scales and balances used, intended for use or designed for use in weighing or measuring controlled substances; (fl Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use, or designed for use in cutting controlled substances; (g) Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining marijuana; (h) Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances; (i) Capsules, balloons, envelopes and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances; 0) Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances; (k) Hypodermic syringes, needles and other objects used, intended for use, or designed for use in apparently injecting controlled substances into the human body; (1) Objects used, intended for use or designed for use in ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish or hashish oil into the human body, such as: (i) Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls, (ii) Water pipes, (iii) Carburetion tubes and devices, (iv) Smoking and carburetion masks, (v) Roach clips: meaning objects used to hold a burning marijuana cigarette that has become too small or too short to be held in the hand, (vi) Miniature cocaine spoons and cocaine vials, (vii) Chamber pipes, (viii) Carburetor pipes, (ix) Electric pipes, (x) Air-driven pipes, (xi) Chillums, (xii) Bongs, (xiii) Ice pipes or chillers. In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other logically relevant facts, the following: -4- (A) Statements by an owner or by anyone in control of the object concerning its use; (B) Prior convictions; if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance; (C) The proximity of the object, in time and space, to a direct violation of this chapter or RCW 69.50; (D) The proximity of the object to controlled substances: (E) The existence of any residue of controlled substances on the object; (F) Direct or circumstantial evidence of the intent of an owner or of anyone in control of the object, to deliver it to persons whom he or she knows, or should reasonably know, intends to use the object to facilitate a violation of this chapter or RCW 69.50; the innocence of an owner or of anyone in control of the object as to a direct violation of this chapter shall not prevent a finding that the object is intended for use or designed for use as drug paraphernalia; (G) Instructions, oral or written, provided with the object concerning its use; (H) Descriptive materials accompanying the object, which explain or depict its use; (I) National and local advertising concerning its use; (J) The manner in which the object is displayed for sale; (K) Whether the owner or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products; (L) Direct or circumstantial evidence of the ratio of sales of the object(s) to the total sales of the business enterprise; (M) The existence and scope of legitimate uses for the object in the community; (N) Expert testimony concerning its use. (3) "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another, whether or not there is an agency relationship. 9.38.030 DRUG PARAPHERNALIA—UNLAWFUL CONDUCT. It is unlawful for any person: (1) To use, or to possess with the intent to use, drug paraphernalia or to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise induce into the human body a controlled substance, the possession of which controlled substance is in violation of RCW 69.50; or (2) To sell, deliver, possess with the intent to sell or deliver, or manufacture with the intent to sell or deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, -5- 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, the possession of which controlled substance is in violation of RCW 69.50. A violation of this section shall be a violation of this code. Any person who violates this subsection is guilty of a misdemeanor. (3) Any person eighteen (18) years of age or over who violates subsection (2) of this section be delivery drug paraphernalia to a person under eighteen (18) years of age who is at least three (3) years his or her junior is guilty of a gross misdemeanor. (4) It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia. Any person who violates this subsection is guilty of a misdemeanor. 9.38.040 MARIJUANA—DEFINITION. As used herein, the word "marijuana" means all parts of the plant of the genus Cannabis L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stocks of the plant, fiber produced from the stocks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stocks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. 9.38.050 MARIJUANA—POSSESSION UNLAWFUL It is unlawful for any person within the City of Pasco to be in possession of forty grams or less of marijuana. Any person found guilty of possession of forty grams or less of marijuana shall be guilty of a misdemeanor. 9.38.060 SALE, DELIVERY, OR POSSESSION OF LEGEND DRUG WITHOUT PRESCRIPTION OF ORDER PROHIBITED— EXCEPTIONS. (1) It shall be unlawful for any person to sell, deliver, or possess any legend drug except upon the order or prescription of a physician under RCW 18.71, an osteopathic physician and surgeon under RCW 18.57, a dentist under RCW 18.32, a podiatric physician and surgeon under RCW 18.22, a commissioned medical or dental officer in the United States armed forces or public health service in the discharge of his or her official duties, a duly licensed physician or dentist employed by the veterans administration in the discharge of his or her official duties, a registered nurse or advanced registered nurse practitioner -6- under RCW 18.79 when authorized by the nursing care quality assurance commission, an osteopathic physician assistant under RCW 18.57A when authorized by the board of osteopathic medicine and surgery, a physician assistant under RCW 18.71A when authorized by the medical quality assurance commission, a physician licensed to practice medicine and surgery or a physician licensed to practice osteopathic medicine and surgery, a dentist licensed to practice dentistry, a podiatric physician and surgeon licensed to practice podiatric medicine and surgery, or a veterinarian licensed to practice veterinary medicine, in any province of Canada which shares a common border with the state of Washington or in any state of the United States: Provided, however, that the above provisions as those chapters may be amended from time to time, shall not apply to sale, delivery, or possession by drug wholesalers or drug manufacturers, or their agents or employees, or to any practitioner acting within the scope of his or her license, or to a common or contract carrier or warehouseman, or any employee thereof, whose possession of any legend drug is in the usual court of business or employment: Provided, further, that nothing in this section or RCW 18.64 as may be amended from time to time, shall prevent a family planning clinic that is under contract with the department of social and health services from selling, delivery, possession, and dispensing commercially prepackaged or contraceptives prescribed by authorized, licensed health care practitioners. (2) Whoever violates any provision of this section shall be guilty of a misdemeanor. 9.38.070 FORFEITURE. Upon a conviction, the court shall enter an order forfeiting to the city all paraphernalia or marijuana found to have been involved in the commission of the offense. 9.38.080 PENALTIES—MANDATORY MINIMUMS. A person who is convicted of a misdemeanor violation of any provision of this chapter shall be punished by imprisonment for not less then twenty-four (24) consecutive hours, and by a fine of not less than two hundred fifty dollars ($250). On a second or subsequent conviction, the fine shall not be less than five hundred dollars ($500). These fines shall be in addition to any other fine or penalty imposed. Unless the court finds that the imposition of the minimum imprisonment will pose a substantial risk to the defendant's physical or mental well being or that local jail facilities are in an overcrowded condition, the minimum term of imprisonment shall not be suspended or deferred. If the court finds such risk of overcrowding exists, it shall sentence the defendant to a minimum of forty hours of community service. If a minimum term of imprisonment is suspended or deferred the court shall state in writing the reason for granting the suspension of deferral and the facts upon which the -7- suspension or deferral is based. Unless the court finds the person to be indigent, the minimum fine shall be not suspended or deferred. 9.38.090 DRUG-FREE ZONE DECLARED. (1) The City hereby establishes the following areas located within the City of Pasco as Drug-Free Zones: (a) Schools as defined in RCW 28A.150.010 or 28A.150.020 and including private schools approved under RCW 28A.195.010; (b) Public parks meaning land, including any facilities or improvements on the land, that is operated as a park by the City or any other governmental entity; (c) Housing Authority as defined by RCW 35.82.020; (d) City Civic Center meaning a publicly owned or publicly operated place or facility used for recreational, educational, or cultural activities; (e) The area within one thousand feet of the perimeter of the grounds of any such school, city park, civic center or housing project. (2) Any facility or use listed in Section (1) above coming into existence or established after the effective date of this ordinance shall automatically be designated as a drug-free zone. All facilities and uses designated in Section (1) above, shall be posted with appropriate signs which indicate that such area is a drug-free zone. 9.38.100 PROHIBITED CONDUCT WITHIN DRUG-FREE ZONE. Any person who violates Section .050 of this chapter by using or possessing drug paraphernalia, or violates Section .070 of this chapter by possessing marijuana, or RCW 69.50.401(a) by manufacturing, selling, delivering, or possessing with the intent to manufacture, sell, or deliver a controlled substance listed under that sub-section, or who violates RCW 69.50.410, by selling for profit any controlled substance or counterfeit substance classified in Schedule 1, RCW 69.50.204, except leaves and flowering tops of marijuana to a person within a drug-free zone may be punished by a fine or imprisonment of up to twice the fine or imprisonment otherwise authorized for violation of the above sections. Nothing herein shall authorize enhancement of the fine or imprisonment imposed by violation of RCW 69.50.206 as amended from time to time, or other fines or imprisonment otherwise authorized by this chapter for an offense. 9.38.110 DEFENSES. (1) It is not a defense to a prosecution for a violation of this section that the person is unaware that the prohibited conduct took place within a drug-free zone. (2) It is not a defense to a prosecution for a violation of this section that persons under the age of eighteen (18) years were not present within the drug-free zone. -8- (3) It is an affirmative defense to a prosecution for a violation of this section that the prohibited conduct took place entirely within a private residence, that no person under eighteen (18) years of age or younger was present in such private residence at any time during the commission of the offense, and that the prohibited conduct did not involve delivering, manufacturing, selling, or possessing with the intent to manufacture, sell or deliver any controlled substance in RCW 69.50.401(a) for profit. The affirmative defense established in this section shall be proved by the defendant by a preponderance of the evidence. This section shall not be construed as to establish an affirmative defense with respect to the prosecution of an offense defined in any other section of this chapter. 9.38.120 MAP DESIGNATING DRUG-FREE ZONE. In a prosecution under this section, a map produced or reproduced, by the City Engineer for the purpose of depicting the location and the boundaries of the drug-free zones shall, upon proper authentication be admissible and shall constitute prima facie evidence of the location and boundaries of drug-free zones. This map shall be updated by the City Engineer from time to time as subsequent drug-free zones come into existence or are terminated. A true copy of the map shall be filed with the City Clerk and maintained as an official record of the City. This section shall not preclude the prosecution from introducing or relying upon other evidence.or testimony to establish any element of the offense. This section shall not be construed to preclude the use of admissibility of any map or diagram other than the approved map if the map or diagram is otherwise admissible under court rule. 9.38.130 CHAPTER CUMULATIVE. The provisions of this Chapter are intended as cumulative and selective and shall not repeal any other ordinance involving the same subject matter. 9.38.140 SEVERABILITY. If any provision of this Chapter is held invalid, such invalidity shall not affect any other provision, or the obligation thereof, which can be given affect without the inviolate provision or application, and to this end the provisions of this Chapter are declared to be severable. § 6. If any section, subsection, paragraph, sentence, clause, phrase, or word of this ordinance is declared unconstitutional or invalid for any reason, it shall be severed, and such decision shall not affect the validity of the remaining parts of this ordinance. § 7. All chapters repealed by this ordinance shall remain in full force and effect until the effective date of this ordinance. -9- 8. This Ordinance shall take effect five (5) days after passage and publication. PASSED by the City Council of the City of Pasco this 2Uh Day of August, 2001. ?l 4 Michael L. Gam' son, Mayor ATTEST: APPR S TO FORM: Dve Catherine D. Seaman, Deputy City Clerk Leland B. Kerr, City Attorney -10-