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Home My WebLink About6.1 MuniCode Drug Phar. CITY CLERK File # D~rn[Q]-rn~ AGENDA STATEMENT CITY COUNCIL MEETING DATE: April 1, 2008 SUBJECT: ATTACHMENTS: RECOMMENDATION: ~ FINANCIAL STATEMENT: None. DESCRIPTION: PUBLIC HEARING: Amendment of Dublin Municipal Code Chapter 4.24 (Drug Paraphernalia) Report Prepared by Elizabeth H Silver, Assistant City Attorney and Stephen Muzio, Associate Attorney 1. Ordinance Amending Dublin Municipal Code Chapter 4.24 Relating to Drug Paraphernalia. Clean version of ordinance. 2. 1. 2. 3. 4. 5. Receive Staff presentation; Open public hearing; Receive public testimony; Close public hearing and deliberate; Waive reading and INTRODUCE the Ordinance Amending Chapter 4.24 of the Dublin Municipal Code relating to Drug Paraphernalia (Attachment 1). 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 Dublin Municipal Code (DMC). One chapter proposed for review is DMC Chapter 4.24, which prohibits the display and distribution of drug paraphernalia. Staff reviewed the ordinance and determined that much of this Chapter conflicts with State law. On February 5, 2008, Staff presented the City Council with an ordinance repealing the Chapter. The Council directed staff to draft an ordinance prohibiting certain displays not covered by State law, while ensuring that Chapter 4.24 does not conflict with state law. ANALYSIS: State Law Preemvtion In 1983, the California Legislature enacted two laws regulating drug paraphernalia: Health and Safety Code ("H&S") ~~ 11014.5 and 11364.7. H&S ~~ 11014.5 and 11364.7 cover most if not all of the behavior and activities prohibited by Chapter 4.28 as it is currently written. COpy TO: Page 1 of2 od ~./ ITEM NO. II ) However, Staff identified one scenario in which the State law outcome would be different than the outcome under Chapter 4.24. H&S ~ 11014.5 defines "drug paraphernalia" as "all equipment, products and materials of any kind which are designed for use or marketed for use" in the production or consumption of drugs. Section 4.24.030 has a broader definition of drug paraphernalia that encompasses items that are not "marketed" or "designed" for use with drugs, but that are nonetheless useful, or displayed in a manner suggesting their usefulness, in the production and consumption of drugs. Although state law does provide for the seizure of such items of drug paraphernalia, it does not provide for the criminal sanction of, or revocation of the business licenses held by, persons displaying such items. Staff has reviewed Chapter 4.24 in light ofthe direction from the City Council, and recommends that the Chapter be amended to prohibit, and provide for the sanction of, activity that is not otherwise regulated by State law. Staff also recommends that section 4.24.060 be amended to refer to the penalty provisions provided for in Section 1.04.030 and that the word "city" be capitalized where necessary to ensure consistency with the rest of the Municipal Code. Dublin Police Services has reviewed Chapter 4.24 and concurs with the recommended changes. RECOMMENDATION Staff recommends that the City Council: 1) receive Staff presentation; 2) open public hearing; 3) receive public testimony; 4) close public hearing and deliberate; 5) waive reading and INTRODUCE the Ordinance Amending Chapter 4.24 of the Dublin Municipal Code relating to Drug Paraphernalia (Attachment 1). Page 2 of2 /o/)~ ORDINANCE NO. XX - 08 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********** AMENDING CHAPTER 4.24 OF THE DUBLIN MUNICIPAL CODE RELATING TO DRUG PARAPHERNALIA RECITALS WHEREAS, the California Legislature has enacted Health and Safety Code Sections 11014.5 and 11364.7, which together prohibit the manufacture and distribution of drug paraphernalia; and WHEREAS, the City of Dublin Municipal Code Chapter 4.24 provides regulations prohibiting the display and distribution of drug paraphernalia; and WHEREAS, when a city ordinance seeks to regulate an activity that is regulated by the State, such ordinance is preempted by State law; and WHEREAS, the Health and Safety Code does not make all displays of items of drug paraphernalia that are not for sale illegal; and WHEREAS, the City of Dublin Municipal Code Chapter 4.24 provides that displays of items of drug paraphernalia that are not for sale are always illegal and are grounds for revocation of the displaying store's business license; and WHEREAS, the City Council desires to repeal those sections of Chapter 4.24 that are preempted State law, but also desires to retain those provisions of the Chapter relating to the display of drug paraphernalia that is not for sale. NOW, THEREFORE, the City Council of the City of Dublin does hereby ordain as follows: Section 1. Chapter 4.24 of the Dublin Municipal Code is amended as follows, with deletions indicated in strikethrough and additions indicated in underline: 4.24.010 Findings. 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. 4.24.020 Intent. A. The display of drug paraphernalia in retail stores within the City, intensifies and otherwise compounds the problem of illegal use of controlled substances within this community. B. This chapter is a measure which is necessary in order to discourage the illegal use of controlled substances within the community. Page 1 of3 '-/-I-t)~ ~I ATTACHMENT 1 2'{Y 4.24.030 Definitions. 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. "Drug paraphernalia" means any of the following when displayed: 1. Any item which is not otherwise defined by any statute of the state of California as drug paraphernalia, whether useful for nondrug-related purposes or not, which is displayed or grouped with other items in a manner to reasonably suggest its usefulness in the growing, harvesting, processing, manufacturing, preserving, inhaling, 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 which is not otherwise defined by any statute of the state of California as drug paraphernalia, whether useful for nondrug-related purposes or not, which is decorated or adorned in a manner to reasonably suggest its usefulness in the growing, harvesting, processing, inhaling, injecting, or ingesting of marijuana, hashish, cocaine, or any controlled substance as defined in the Health and Safety Code of the state of California. 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 business as an agent of the owner, to wilfully display drug paraphernalia at such business. 4.24.050 Revocation of business license. Violation of the provisions of this chapter shall constitute grounds for revocation of any business license issued by the City to a business upon the premises of which the violation has occurred. Revocation of a business license shall be pursuant to procedures adopted by the City. 4.24.060 Violation-Penalty. Any violation of the provisions of this chapter shall constitute a misdemeanor and shall be punished as such in accordance with Section 1.04.030. Section 2. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days following its adoption. Page 2 of3 303 Section 3. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED, APPROVED AND ADOPTED this _ day of ,2008. AYES: NOES: ABSENT: ABSTAIN: Janet Lockhart, Mayor ATTEST: Carolyn Parkinson, Interim City Clerk Page 3 of3