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HomeMy WebLinkAbout4442ORDINANCE NO. 4442 AN ORDINANCE of the City Council of the City of Kent, Washington: (1) amending section 9.12.20 of the Kent City Code to make it illegal to use dangerous drugs in a public place; (2) to revise a number of other sections in Chapter 9.12 of the Kent City Code to make them consistent with state law and to incorporate revisions required by State v. Blake; and (3) to repeal Kent City Code sections 9.12.04, 9.12,08, 9.12.12, 9.12.16, 9.12.24, 9.12.28, 9.12.32, 9.12.36, 9.12.40, and 9.12.48, which prohibit conduct regulated under other laws and are therefore no longer necessary. RECITALS A. In State v. Blake, 197 W.2d 170 (2021), the Washington State Supreme Court found former RCW 69.50.4013, which made it a strict liability offense to possess a controlled substance in violation of the Uniform Controlled Substances Act, unconstitutional because the statute did not require proof that the offender knowingly possessed a controlled substance. Without proof of knowledge, the Court held the statute violated constitutional due process. In response, the state legislature adopted RCW 69.50.4013 during its 2021 legislative session, which provided a temporary correction to the law to make it unlawful for a person to knowingly possess a controlled substance. However, through this same legislation, the legislature enacted RCW 10.31.115, which prohibits law enforcement from arresting or citing someone for unlawful possession of a controlled substance 1 Amend Ch. 9.12 KCC Re: Narcotics and Barbiturates until the offender has twice before been "diverted" to voluntary social services. B. The limitation imposed by RCW 10.31.115 has resulted in offenders openly using and possessing illegal drugs in public places, while simultaneously removing law enforcement's ability to effectively remove the problem, all to the detriment of community members who face an increased risk of harm attributable to the adverse impacts associated with the use of illicit drugs in public. C. While the use of cannabis and alcohol, both legal substances, is prohibited in public, there is no comparable state law that prohibits the use of illegal or controlled substances, like methamphetamine, heroin, and fentanyl, in public. On August 4, 2022, a two-year old child was injured at a Tacoma park when he picked up and ingested a fentanyl pill that had been left in the dirt at the park. D. Although state law does preempt the field of setting penalties for violations of the state's Uniform Controlled Substances Act, Ch. 69.50 RCW, cities are authorized to enact local laws that are not inconsistent with that state law. Because the Uniform Controlled Substances Act does not expressly permit or otherwise protect the public use of controlled substances, the City is authorized to regulate or prohibit that use. Currently, the City regulates the use of controlled substances through a broad ordinance codified at KCC 9.12.20, which was originally adopted in 1972 through Ordinance No. 1787. Portions of that prior ordinance do include conduct regulated by the Uniform Controlled Substances Act and it is appropriate to revise those provisions to ensure they are consistent with state law. Additionally, this ordinance revises the use prohibition to narrow its scope to directly address use of controlled substances in a public place or in view of the general public, or the deposit of controlled substances on the 2 Amend Ch. 9.12 KCC Re; Narcotics and Barbiturates ground or in any body of water. Finally, the ordinance repeals sections within Ch. 9.12 of the Kent City Code which are no longer necessary as the conduct prohibited therein is regulated under other state and local laws. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: ORDINANCE SECTION 1. - Amendment - KCC 9.12.20. Section 9.12.20 of the Kent City Code entitled "Sale, possession or use of dangerous drugs", is amended as follows: Sec. 9.12.20. Use of dangerous drugs in public. A. It is unlawful for any person to intentionally use any dangerous drug in a public place l except as now or hereafter authorized or expressly permitted by the laws of the state or except upon the written or oral order or prescription of a physician, surgeon, dentist, or other medical veter+nFy-professional suf ee , licensed to practice in the state and legally authorized to prescribe controlled substances, B. Definitions For purposes of this section, the following terms or words shall be interpreted as follows: 1. The terng "dDangerous drug" shall means any controlled substance classified in Schedule I, II, III or IV of Chapter 69.50 RCW; 3 Amend Ch. 9.12 KCC Re: Narcotics and Barbiturates excluding cannabis, as it now exists or shall hereafter be added to, deleted from, modified, or amended. 2 "Public place" means an area generally visible to public view and includes without limitation any place where the public has a right of access which includes without limitation sidewalks, parking lots and parking _garages streets, alleys highways or roads; public buildings and grounds, including schools parks playgrounds and meeting halls• establishments to which the public is invited including restaurants theaters stores, gas stations meeting halls, lobbies halls and dining rooms of hotels, bars, taverns,dubs or establishments where beer or soft drinks may be sold, and their associated parking lots parking structures walkways doorways, and entrances; railroad trains light rail facilities, buses and other public conveyances of all kinds and character, and their associated stations and platforms used in conjunction therewith which are open to unrestricted use and access by the public• and all other places of like or similar nature. 3 "Use" means any effort taken in furtherance of an attempt to inject ingest, inhale or otherwise introduce a controlled substance into the human body. SECTION 2. - Amendment - New KCC 9.12.22. Chapter 9.02 of the Kent City Code related to narcotics and barbiturates is amended by enacting a new section, Section 9.12.22 of the Kent City Code entitled "Unlawful deposit of dangerous drugs and drug paraphernalia", as follows: Sec. 9.12.22. Unlawful deposit of dangerous drugs and drug paraphernalia. It shall be unlawful for any person to knowingly dump, throw, deposit, or discharge onto the ground or into any body of water any dangerous drug, as that term is defined in KCC 9.12.20(B)(1), or drug paraphernalia, as defined in RCW 69.50.102, as those referenced provisions are currently enacted or hereafter amended or recodified. 4 Amend Ch. 9.12 KCC Re: Narcotics and Barbiturates SECTION 3. - Amendment - New KCC 9.12.52. Section 9.12.52 of the Kent City Code entitled "Unlawful to aid or abet furnishing certain drugs to persons in jail or custody of police", is amended as follows: Sec. 9.12.52. Unlawful to aid or abet furnishing certain drugs to persons in jail or custody of police. It is unlawful for any person not acting under the direction of the director of public health to knowingly furnish or aid or abet the furnishing of any opium, morphine, cocaine, hydrate of chloral, isonipecaine, amidone, isosmidone, keto-bemidone or any substance neither chemically nor physically distinguishable from any one (1) of them or any opiate or narcotic, or narcotic derivative thereof or any of the "dangerous drugs" mentioned in KCC 9.12.20 to any person confined in the city jail or in the custody of the police department, unless the substance in question is lawfully prescribed for the person by a doctor or physician and is given to such person under the direction of that person's physician or doctor. SECTION 4. - Amendment - KCC 9.12.56. Section 9.12.56 of the Kent City Code entitled "Places of resort for users of narcotics and/or dangerous drugs declared nuisance", is amended as follows: Sec. 9.12.56. Places of resort for users of narcotics and/or dangerous drugs declared nuisance. It shall be unlawful for any person, firm, corporation or agent, holding, leasing, renting, occupying or having charge and control of, any building, structure or premises or room or rooms therein to knowingly permit the same to be used as a place of resort4ef mentioned in KGG 9.12.08 d 942.29 „r to p n9it thereon for the unlawful sale, gift, use, or distribution of narcotics, narcotic drugs or dangerous drugs mentioned in KCC 9.12.08 and 9.12.20, and any such place eF any p+aee 5 Amend Ch. 9.12 KCC Re: Narcotics and Barbiturates - -- - - hereby declared to be a public nuisance and may be abated as such in the manner provided by this chapter. SECTION 5. - Amendment - KCC 9.12,64. Section 9.12.64 of the Kent City Code entitled "Sale, possession or use of dangerous drugs", is amended as follows: Sec. 9.12.64. Unlawful to frequent or be in place where narcotics and/or dangerous drugs are unlawfully kept, used or disposed of. It is unlawful for anyone, not lawfully authorized, to frequent, enter, be in, or be found in any place they know to be a location where narcotics, narcotic drugs, their derivatives, or dangerous drugs mentioned in KCC 9.12.08 and 9.12.20 are unlawfully used, kept, or disposed of. SECTION 6. - Amendment - KCC 9.12.68. Section 9.12.68 of the Kent City Code entitled "Sale, possession or use of dangerous drugs", is amended as follows: Sec. 9.12.68. Penalty for violations. Unless another section twentyexpressly provides otherwise, any person who violates any provision of this - -- I :I a fine ef net less than twe hui9dFed fifty dellars ($259). en a seeend 6 Amend Ch. 9.12 KCC Re: Narcotics and Barbiturates - -- -- --- O - - - --- - : - ---- - - - -- - - - :. - - OLWELEA -- -- -- -- - - Sec. 9.12.75. Drug -traffic loitering. A. As used in this section: 1. Conviction means an adjudication of guilt pursuant to RCW Title 10 or 13, or the equivalent provisions of any federal statute, state statute, or ordinance of any political subdivision of this state, and includes a verdict of guilty, a finding of guilty, and an acceptance of a plea of guilty. 2. Drug paraphernalia means drug paraphernalia as the term is defined in the Uniform Substance Act, RCW 69.50.102, excluding hypodermic syringes or needles in the possession of a confirmed diabetic or a person directed by his or her physician to use such items. 3. Illegal drug activity means unlawful conduct contrary to any provision of Chapter 69.41, 69.50 or 69.52 RCW, or the equivalent federal statute, state statute, or ordinance of any political subdivision of this state. 4. Known drug trafficker means a person who has, within the knowledge of the arresting officer, been convicted within the last two (2) years in any court of any felony illegal drug activity. 5. Public place is an area generally visible to public view and includes, but is not limited to, streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, transit stations, shelters and tunnels, automobiles visible to public view (whether moving or not), and buildings, 7 Amend Ch. 9.12 KCC Re: Narcotics and Barbiturates including those which serve food or drink, or provide entertainment, and the doorways and entrances to buildings or dwellings and the grounds enclosing them. 6 Use means any effort taken in furtherance of an attempt to inject ingest inhale, or otherwise introduce a controlled substance into the human body. B. A person is guilty of drug -traffic loitering if he or she remains in a public place and intentionally solicits, induces, entices, or procures another to engage in unlawful conduct contrary to Chapter 69.50, 69.41 or 69.52 RCW. C. The following non-exclusive list of circumstances do not by themselves constitute the crime of drug -traffic loitering, but they may be relevant in evaluating the criminal intent required by subsection (B):errg 1. Is seen by the officer to be in possession of drug paraphernalia under circumstances that evince an intent to use a controlled substance other than cannabis; or 2. Is a known drug trafficker; or 3. Repeatedly beckons to, stops or attempts to stop passersby, or engages passersby in conversation; or 4. Repeatedly stops or attempts to stop motor vehicle operators by hailing, waving of arms or any other bodily gesture; or 5. Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to stop pedestrians. D. No person may be arrested for drug -traffic loitering unless probable cause exists to believe that he or she has remained in a public place and has g Amend Ch. 9.12 KCC Re; Narcotics and Barbiturates intentionally solicited, induced, enticed or procured another to engage in unlawful conduct contrary to Chapter 69.50, 69.41, or 69.52 RCW. E. A person convicted of drug -traffic loitering under this section shall be punished by a fine of not more than five thousand dollars ($5,000) or term of imprisonment of not more than 364 days-&�, or both. SECTIONS. - Repealer - Various Sections in Ch. 9.12 KCC. Chapter 9.02 of the Kent City Code related to narcotics and barbiturates is amended to repeal the following sections in their entirely: Sec.9.12.04. Unlawful to use or be under influence of narcotics - Exception. Sec. 9.12.08. Unlawful to possess narcotics without proper license or prescription. Sec. 9.12.12. Unlawful to sell or give away narcotics without prescription. Sec. 9.12.16. Prescribing narcotics. Sec. 9.12.24. Unlawful to possess without prescription. Sec.9.12.28. Unlawful to possess unless specifically prescribed for person in possession. Sec. 9.12.32. Unlawful to administer except as prescribed. Sec. 9.12.36. Unlawful to be under influence in public place. Sec. 9.12.40. Prosecution for violation. Sec.9.12.48. Possession as prima facie evidence of violation. SECTION 9. - Severability. If any one or more section, subsection, or sentence of this ordinance is held to be unconstitutional or invalid, such 9 Amend Ch. 9.12 KCC Re: Narcotics and Barbiturates decision shall not affect the validity of the remaining portion of this ordinance and the same shall remain in full force and effect. SECTION 10. - Corrections by City Clerk or Code Reviser. Upon approval of the city attorney, the city clerk and the code reviser are authorized to make necessary corrections to this ordinance, including the correction of clerical errors; ordinance, section, or subsection numbering; or references to other local, state, or federal laws, codes, rules, or regulations. SECTION 11. - Effective Date. This ordinance shall take effect and be in force 30 days from and after its passage as provided by law. September 6, 2022 Date Approved ATTEST: �& a - " September 6, 2022 KIMBERLEY A OMOTO, CITY K Date Adopted L � raj:» � • • TAMklY`%/HITE, CITY ATTORNEY ty�y` eebe4k.,J°r September 9, 2022 Date Published 10 Amend Ch. 9.12 KCC Re: Narcotics and Barbiturates STATE. OF WASHINGTON, COUNTY OF KING } AFFIDAVIT OF PUBLICATION PUBLIC NOTICE Rudi Alcott, being first duly sworn on oath that he is the Vice President of Advertising for Sound Publishing, which publishes the Kent Reporter a weekly newspaper, which newspaper is a legal newspaper of general circulation and is now and has been for more than six months prior to the date of publication hereinafter referred to, published in the 1?nglish language continuously as a weekly newspaper in King County, Washington. The Kent- Covington Reporter has been approved as a Legal Newspaper by order of the Superior Court of the State of Washington for King County. The notice in the exact form annexed was published in regular issues of the Kent- Covington Reporter (and not in supplement form) which was regularly distributed to its subscribers during the below stated period. The annexed notice, a: Public Notice #KEN962115 was published on September 9, 2022 The full amount of the fee charged for said foregoing publication is the sum of $20 .34 Rudi Alcott Vice President, Advertising Subscribed and sworn to me this 9th day of September, 2022 . j iferTribbett, otary Public for the State of Washington, Residing in ting, Washington ,fy/piNllttll/// ,��,,•�`N�FER D Tit'''%,�� s Classified Proof CITY OF KENT NOTICE OF ORDINANCES PASSED BY THE CITY COUNCIL The following are sum- maries of ordinances passed by the Kent City Council or, September 6. 2022. ORDINANCE NO. 4439 - AN ORDINANCE of the City Council of the City of Kent. Washington. ap- proving the consolidating budget adjustments made beCy,,een April 1. 2022 and June 30. 2022, reflecting an overall bud- get Increase of S16.463.769 This ordi- nance shall take effect and be in force five days after publication. as pro- vided by law. ORDINANCE NO. 4440 - AN ORDINANCE of the City Council of the City of Kent. Washing- ton addressing graffiti - related crimes by amending Kent City Code section 9.02.660 related to the unla.vful possession of graffiti tools to ncorporate housekeeping revisions. and adopting new Kent City Code Sections 9.02.662 and 9.02.664. limiting the sale of aero sol paint containers to persons over the age of 18 years. requiring busi- nesses to restrict public access to aerosol paint containers. and requiting businesses to post signs informing customers of the age requirement to purchase aerosol paint containers. This ordi- nance shall take effect and be in force 30 days from and after its pas- sage as provided by lays. ORDINANCE NO. 4441 - AN ORDINANCE of Proofed by Jennifer Tribbett, 08/30/2022 10:20:27 pm Page: 2 Classified Proof the City Council of the Citv of Kent. Washing- ton.. amending Chapter 9.02 of the Kent City Code to add a new Sec- tion 9.02 645. entitled "solicitation of occu- pants of vehicles on public roadways'. mak- ing it unlawful for any person to enter or re- main on an arterial road- way or a median with the intent to conduct a solici- tation of the occupant of any vehicle traveling on or stopped on the arteri- al roadway. This ordi- nance shall take effect and be in force 30 days from and after its pas- sage as provided by lay✓ ORDINANCE NO. 4442- AN ORDINANCE Of the Citv Council of the City of Kent. Washing- ton. (1) amending sec- tion 9.12.20 of the Kent City Code to make it Ile - gal to use dangerous drugs in a public place, (2) to revise a number of other sections in Chap- ter 9 12 of the Kent Citv Code to make them con- sistent with state law and to incorporate revi- sions required by State v Blake- and l31 to re- peal Kent City Code sec bons 9.12.04. 9.12.08. 9 12 12. 9 12.16. 9.12,24. 9.12.28. 9,12.32. 9.12.36, 9.12.40. and 9,12.48. which prohibit conduct regulated under other laws and are therefore no longer necessar}'. This ordinance shall take effect and be in force 30 clays from and after it, passage as provided by law. A copy of the complete text of anv ordinance will be made[ upon request of the City Clerk. Kimberiev A. Komoto. City Clerk f<komoto a KentWAgov. 253-856-5725 9962115 9/9 21, Proofed by Jennifer Tribbett, 08/30/2022 10:20:27 pin Page: 3