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HomeMy WebLinkAbout1982-06-29; City Council; 7066; Drug Paraphernalia OrdinanceI f ,-l P-f (I) ,£i B M i (I) ,£i "(j Q) ~ I~ ~ 1 ., § -~ +J 1 ~ ~ +J l Cl) Q) ,£i "(j ~ , s ~.§ Ul ,-1 Cl) ]] N 00 I °' N I \0 4 • .. z 0 ~ ..J 0 z ::::, 0 0 I I r~ t~1 CIT\ JF CARLSBAD •-AGENDA dill AB# '70 G, (p TITLE: MTG.6/29/82 DRUG PARAPHERNALIA ORDINANCE DEPT. C_A __ _ RECOMMENDED ACTION: DEPT. HD.___,~ c1rv ATTY vr/3 CITY MGR.~ Refer Ordinance No. ~to Planning Commission for report and recommendation on Section 2 of the ordinance. ITEM EXPLANATION: The Police Chief has requested that our office prepare an ordinance to regulate drug paraphernalia stores in the City of Carlsbad: The Police Chief suggested that the ordinance be of a "regulatory" type rather than a total prohibition. This suggestion was based upon research done by the Police Department which concluded ·tnat regulation was effective and less subject to legal challenge. The Police Department's research included a review of many ordinances throughout the state. A copy of that report is attached. Ordinance No. (;o~,will add Chapter 5.18 to the Carlsbad Municipal Code. This chapter establishes license requirements and regulations for drug paraphernalia stores. It prohibits the sale of drug paraphernalia to minors and also prohibits minors from being allowed in a drug paraphernalia store unless accompanied by a parent or legal guardian. The ordinance also amends the zone code to require a conditional use permit for drug paraphernalia stores and prohibits their location within 500 feet of certain places where children frequent. For a more detailed analysis see the attached memorandum from the City Attorney. EXHIBITS: 1. Memorandum from City Attorney 2. Memorandum from Chief of Police 3. Ordinance No. [p o(p V DATE: TO: FROM: SUBJECT: MEMORANDUM June 9, 1982 Mayor and City Council City Attorney DRUG PARAPHERNALIA ORDINANCE Pursuant to a request by the Police Department we have drafted an ordinance to regulate establishments selling drug paraphernalia and the sale of drug parapheLnalia in the City of Carlsbad. The attached ordinance is similar to ordinances in many cities and counties in California and is similar to the ordinance which withstood certain constitutional challenges, in the case of Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. -u.s.-, 71 L. Ed. 2d 362 (1982). The ordinance is primarily regulatory in nature. It requires drug paraphernalia establishments to get a license issued by the police chief, to keep records of the sale of drug paraphernalia, and prohibits the location of a drug paraphernalia store within 500 feet of places that children might frequent. The ordinance does not contain a total ban on drug paraphernalia but does prohibit the display of drug paraphernalia in any place where children are allowed or the sale of drug paraphernalia to children. What follows is a section by section analysis of the proposed ordinance. The first section of the ordinance adds Chapter 5.18 to the Carlsbad Municipal Code. This chapter establishes the license and operational requirements for drug paraphernalia stores. The ordinance contains a Council declaration that regulation of drug paraphernalia stores is necessary to protect the health, safety and welfare of the citizens of Carlsbad, particularly those under the age of 18 years. The City has much greater authority to regulate businesses in order to protect children than it does to protect adults. Drug paraphernalia is defined in the ordinance as any item whether it is useful for a nondrug-related purpose or not which is sold, displayed or advertised in a manner which reasonably suggests its usefulness in growing, manufacturing or using illegal drugs, or which is designed or decorated in a manner to reasonably suggest its usefulness in growing, manufacturing or using illegal drugs. Drug paraphernalia also includes any item which is defined by any state statute as drug paraphernalia. A drug paraphernalia store is any establishment or place where drug paraphernalia is displayed or sold either as a primary business or incidental to some other business. A drug paraphernalia store does not include places which are authorized and licensed by the state or federal government to dispense controlled substances or paraphernalia for the use of controlled substances, i.e. pharmacies. 2... / Mayor and City Council -2-June 9, 1982 Chapter 5.18 also establishes the license requirements for operating a drug paraphernalia store. Basically the ordinance requires an application for a drug paraphernalia establishment to be submitted to the chief of police and contain detailed information regarding the applicant and the business. A nonrefundable fee of $100 must accompany the application. This fee will be used in part to defray the cost of issuing and investigating the applicant and the establishment. The ordinance establishes the grounds upon which the police chief shall grant or deny the license and requires among other things that the police chief find that the applicant has not been convicted of any drug related offense. Should the police chief deny tte application, it may be appealed to the City Manager. A license fee of $200 shall be paid by the applicant upon issuance of a license. The chapter also requires that the licensee keep a record of every item of drug paraphernalia which is sold and this record must be open to inspection by any police officer during business hours. The record must contain the name, address and age of the purchaser, the type of drug paraphernalip, the type of identification used to identify the purchaser, the time and date of the sale and the signature of the liceusee or the licensee's agent. These records must be kept for a period of two years. Failure to keep the records is grounds for revocation or suspension of the license. There is some question as to the constitutionality of this particular provision. It was contained in the ordinan~e which the U.S. Supreme Court considered in the Hoffman Estates case, however, the Supreme Court specifically said that 1t did not consider or decide whether such recording requirement was constitutional. This is because the Supreme Court will not decide matters which are not properly before them, are not necessary to decide the case at hand, or which have not been fully briefed and argued by the parties. Even though we have some doubts regarding the constitutionality we believe that because this provision is contained in many ordinances throughout the nation that the City Council would be justified in taking the risk that the recording provision would be declared unconstitutional. The Chapter also specifically provides that no person under the age of 18 years shall be allowed to enter any drug paraphernalia ztore or area of a store or other establishment where drug paraphernalia is sold unless accompanied by his or her parent or legal guardian. The ordinance also prohibits the sale of drug paraphernalia to any person under 18 years of age. A sign stating these prohibitions must be prominently displayed in the drug paraphernalia store. Violation of Chapter 5.18.080 is an infraction except for the fourth or any subsequent violation which is a misdemeanor. A violation is also cause for revocation or suspension of the license and a premises operating on violation of the ordinance is declared to be a public nuisance which may be abated according to the provisions of state law. 7 __, .I r I ' Mayor and City Council -3-June 9, 1982 Section 2 of the ordinance amends the zoning ordinance by requiring a conditional use permit for the estalishment of a drug paraphernalia store. The pGrmit would be subject to the conditions that the store not be located within 500 feet of certain listed places where children frequent and that it have no advertisements or signs which display or represent drugs or drug paraphernalia. Should the Council choose to regulate drug paraphernalia in the manner contained in the ordinance it should first refer the matter to the Planning Commission for a report and recommendation on Section 2 of the ordinance. The Planning Commission need not consider Section 1 of the ordinance. JR., City Attorney D Assistant City Attorney DSH:rme attachnent DATE: June 21, 1982 TO: FROM: Dan Hentschke, Assistant City Attorney Vincent D. Jimno, Chief of Police~ DRUG PARAPHERNALIA ORDINANCE \ My staff and I have reviewed the draft of the ordinance regulating narcotics paraphernalia within the City of Carlsbad. I agree with the content of the ordinance and request that it be submitted to the City Council for adoption. db i / I l 2 4 I' D 6 'I 8 9 10 11 12 13 15 16 17 18 19 20 21 22 23 24 25 , 26 27 28 ORDINl\NCI~ NO. 60G6 ----- EXHIBIT "A" AUGUST 6, 1982 AN ORDINl\NCB OP 'l'IIE CITY COUNClTJ OP THE Cl'l':{ OP. Cl\-RLSf3AD, Cl\LIFORNii\ /\MENDING 'l'I'l'f.,E 5 01,o' 'l'Im Cl\RT..Sl31\D MUNICIPAI, CODE BY TIJI~ l\DD!'l'ION OF CIJ/\l?'l'gR 5. 18 AND AMP.ND ING ·1·rrr..B 21, Clll\P'.l'fm 21. 4 2 Oi? 'i'IIE C/\RLSBAD MUNICIPAL CODE BY TH~ ADDITION OF SECTION 21 • '12.010 ( 5) (OB) 'l'O Rl~GULl\'rf:: ES'l'Al3f.,ISIIMEN'l'S SELLING DRUG PAR/\.PIJEH.Nl\f.,Il\ l\ND 'l'HE SELLING OF DRUG J?/~Rl\PlllmNl\.f..Il\. ' 11'he City Council of the City of: Carlsbad, Calif:ornin does ordain as follows: SECTION 1: Th~t Title 5 of the Carlsbad Municipal Code is amended by the addition of Chapter 5.18 to read as follows: Sectiorw 5.18.010 5.18.020 5.10.030 5.18.0-10 5.18.050 5.10.060 5.18.070 5.10.080 5.10.090 "Chapter 5.18 . . DRUG PARAPHERNALIA S'l'ORES Purpose and intent. D~finit:ions. License required. License application. License investigation and issuance. Records. Persons under 10 years of age prohibited. Penalty. Constitutionality. :.. 5.18.010 Purpose and intent. It is the purpose and intcnl: of th.i.s chnptor to r.e~1tt.ll1te t:nc sale! of: drt1g paraphernalia. Such regulation is necessary to protect the health, saf:ety and welfare of: the citizens of the City, particularly those under the age of 18 ye.:11:s. 'l'he business of sellln9 clrug pnraphernalia ).s designated at~ polfoe regulntccl. 5.18.020 Dcflnitions. For the purpose of thi~ coae the f.ollowin9 wm:ds or. pllrl\S<:!s-slrnll: have the meaning aucribec1 to them· in thin section. {a) "Drug paraphernalia" me,ms any of the following, wh<::n dh:.plnyecl, 91:oup,~<l, aclvct"tised or p1:omot:ca (ol: saln: { 1) J\ny i tern, whc l:hcl: uscf:ul f:or. nonch:ug-r.cln t:e:cl pm:poscs or not, which is cli~plnyc?cl, groupr~cl with other. lt:0ms, advcrtisccl or promol:c!cl in n mnnne1: to 1:cusonal>ly tillt.Jt:JCB l: it.!; U!H! f:ulnc.1rw in l:hc growing, hnr.venting, p1:occ:wing, 111,:rnu f..:1<.:tu i:.i ng, p1:c1!icr.vlng, i.nh.:tlin9, injccl:in<J 01: ingcn ting of mild :i u .. mu, lHH.~hish, coc,1inc, or i.lny r.onti:ollccl subnl:i.111cc <lf.l clefincd in th<~ Jlc,,lth m1cl s.:,f:cl:y Code of: the nt:.:,tc of: Cali.l:ornia; 1 2 3 4 5 6 7 8 9 10 11 12 0 < i') ti) J.3 ~ C.I ·, .• ce C, N j u: < 0> ..,0 .:i: 111, , o,~ ,u - j P,O~°U~ j~~~g 15 I O :5 _, .. : • 1:1 ~ I I->-g . lG ;,: IU 0 , u1ZN<t · oc:-m I~ 0 ti) :i..'l _._ ..I > ~ (C <: <t '). 0 I• J.8 0 19 20 21 22 23 24 ~5 26 2r/ 20 (2) nny item, whether useful or nondrug-rclated purposes or not, which is designed, decorated or adorned in a manner to reasonably suggest is usefulness in the growing, harvesting, procecaing, inhaling, injecting or ingenting of marijuana, hashish, cocaine, or any controlled substance as defined in the Ucalth and Safety Code of the state of Cal5,f01:nia; (3) Any item defined by any statute of the state of California as drug pa~aphernalia. {b) "Drug paraphernalia store" means any establishment or place where drug paraphernalia is displayed, grouped, advertised or promoted for the pupose of sale, either as a primnry business or as an incident of some other business. "Drug paraphernalia store" as used in this chapter does not include an estdblishment or place specifically licensed or authorized by the state or fedc~ral government or any a9ency thereof to sell or offer for sale marijuana, hashish, cocaine, or any co~trolled substance as defin~d in the Health and Safety Code of the state of California, when drug paraphe~nalia is displayed, advertised or promoted for the purpose of sale to persons authorized by prescription or otherwise to legally possess such marijuana, hashish, cocaine or other such controlled substance with which the drug paraphernalia item is so usecl; nor does "drug pm:aphernalia store" include ~my establishment or place licensed by the state or federal gover.ninent, or any agency thereof:, to lawf:ully sell drug paraphernalia. 5.18.030 License reauired. No person sholl engngc in conduct, carry on, or permit to be engc1ged in, conaucted or carried on, in, upon, or within any premises within the city a drug paraphernalia store unless an annual license for th9 operation ◊f such &tore has been issued by the chief of police and unless the license remains in effect in comformity with the pr.ovisions of this chaper. Any license issued pursuant to this chapter shall be vnlid for one year from the dnt~ of issuance, unless suspended or revoked. 5.18.040 License ctpplicntion. (a) Koch appl1~at1on tor a ctr.ug paraphernalia esl:.nbli[~hment license shnll be submi tl:.cd to the chief of pol.ice ctnc1 slwll contain the f:ollowing inf:ormnt.ion: (1) 1~e location and mailing address of the pr.oposecl eot.ablinhment; · ( 2) 'l'he name nncl residence adclress and phone number of each nppli.c:nnl:; (3) If the applicant is a corporation, the names an,1 rcr.idencc a,lclr.c!f:ir.~s nn<l phone number.s of: encl. of: H,e o t:f:icer.r. <ll1(l cHrcctorn ol: the corpo1:nl:i.on and of: cnch stocl:hc:>ldur owning more thnn ten pc1:ccnl: of the Bl:.ock of the corpo1:ntion; ( 4) If th~' npplicutit is n partne,:ship, the names anc] ,:cBiclenc:c ,.H1a1:c:::~rn:, nncl phone numbcru of: each of the pt11~tnern including limited partncro; 2. I _j _.. ....... ---,,,---•~-- 1 2 3 .4 5 6 7 8 9 10 J.l (.) 12 <( m (I> 13 II) .., g • c.: N i:: <( (I) I: u <Z 14 01,. ~:"' OO~i2 z>-'"o Q 1-~ u. 15 Q--0:; _, u:' -'~ >-w 16 ~ t" 8 o IU :;,: C.. <( r.> !'C •• Iii zr ,., 17 -. .., > -t,~ <( <( ?: 0 0 18 19 20 21 22 23 2'1 25 26 27 }W (5) The previous addresses, if any, for. a period of five years immediately prior to the date of the application and the dates of resident at each; (G) Written proof that the applicant is over the age of eighteen years; (7) Provision of identification such as driver's license, social security card, etc; (8) Business, occupation or employment history of the applicant for the five years immediately preceding the date of the application; • (9) Written statements of at least five bona fide adult per.sons who may be easily and conveniently contacted, th~t the applicant is of: 9ooc'l moral character; (10) All criminal convictions, or other than minor traffic violations, with a full explanation of the circumstances ther.eof; (11) Such other identification and information necessary to discover the truth of the matters hereinbefore specified as required to be set forth in the application • (b) A nonrefundable fee of one hundred dollars shall accompany each application to defray, in part, the costs of: the license investigation and issuance. The application fee sh~ll not be in lieu of, and shall be in addition to the business license fee paid purjuant to thia chapter. 5.10.050 License invcstiqation and issuance. Upon receipt oT: u compleLe appf1c,:ttJ.on imd tee, the cl11e.c of police shall within a r.cc:\so:rnble time, not t.o exceed l:hirty dt,ys, verify the application information and investigate the background of the applicant. . The chief of police shall notify the planning, building and fire department:~; regnrdin~J the pending applicution. 'l'he notified departments, within the thirty days from the application date, shall inspect the premises proposed to be devoted to the sale of drug paraphernnlia and shall make separate recommendations to the chief of police concerni~g compl.lnnce wil:h the provi~ions of: this chapl:ar mid ,-,it.h l:he other applicable pr.ovioions of state law and the municipal code. (a) Based upon the results of his own investigution and upon tha reports received from the other city departments, the chief of police shall issue n drug paraphernalia establishment liccnge if he finds: ( 1) 'l'lwt the operation, as pr.opoBod by the nppl icant, if liccnSf!d, would comply \•d. th all applicable :tav:s, including but not limited to, the city' n buildin~t, ?.oning nnd •fire rcgulationa~ . (2) 'rhat the applicant, if an incliviclual, or. in the c,wc oC ,m applicant: which in a corporntion or. n 1),1r.t:nor.Hhip, any of: it:.r,; of:ficct:!;, cU1:cct01:n, holclerr~ or: t:cm perc:cnl:. or more oJ: co1~p0l:ution otocl~, or nny employee author.i?.cd to ncll clrtHJ pm:nr,her.nalin hnn not been conv ictcd in a com:t of compcl:cnl: juricdiction of any drug rclalcd o1fcnnc. ,3. I •I l 2 z 4 5 6 7 8 9 10 .11 12 n <> ro C:) 13 5 c, • cc 0 N ~ c3 a, 1-1 • w<t 0 IL :, :" p O 7. ~ g>-~o 15 E !: < !:!: u -.J ,u:,j<t J > IJ 0 16 )~l!J 80 '~ ~ ~! .-i:: I a\ i~~ ~ 17 > C: I < .-i:: I ~ 0 18 0 19 20 21 22 23 2'1 2'· .,o 26 27 28 (3) intent to deceive statement of fnct document required (4) of this chapter. That the applicant has not knowingly and with made any false, miolcading or fraudulent in the permit application or any other by the city in conjunction therewith; The applicant has met all the requirements (b) If one or more of the above described findings cannot be macle r the :pcenr.e shall be denied. In the event of denial, notifications an~ reasons for denial shall be set forth in writing by the chief of police and shall be sent to the applicant by means of registered or certified mail or hand delivery. '£he denied applican l: shall, ,1t his elect ion, hava the right to receive a hearing before the city manager. If such a hearing is not requested within ten days of the notice of of denial by the chief of police, the denial shall be final. (c) Upon issuance of the license a license fee of two hundred dollars shall be paid by the applicant. 5.18.060 Records. (a) Every licensee must keep a record of every item of drug paraphernalia which is sold and this record shall be open to the inspection of any police officer at any time during the hours of business. Such record shall contain the following: (1) The name, address, and age of the purchaser; (2) The type of identification used to verify the age of the purchaser including the license, account or serial number thereof; (3) signature. (4) (5) The name and quantity of the product; The dace and time of the sale; and The licensee or agent of the licensee's (b) Falsification of such record or any portion thereof or presentation by any pruchaser of false identification shall be unlawful. Such records shall be retained for not less than two years. 5.18.070 Persons unaer 18 years of age prohihited. (a) Any parson engaged 1n, conducting, managing or carrying on a drug paraphernalia store, shall not: ( 1), Permit persons under. the age of 10 yc,trs of age to enter., unaccompanied by his or h~~ parent or legRl gqnrdion, any area of: such cstabliahment or store, where such person unaer the nge of 18 years may view drug paraphernaliai (2) Sell drug paraphernalia to any person under the age of 18 year of: age. (b) l\ sign n tat:ing the prohibitions of th h; section r.;lrnll be prom:i:nantly clinplc:tycd in the <l1:ug par.,1phernalin store. · 5.10.080 Pcnnlty. Any violation of: thio chapter shall be: ( 1) An inf1:nction punishable puruuanl: to Chtiptcr 1. 00 of: \:hin code, except: (:01: the? l:ourt:h or any r.rnlmc?qucnl: violation which Blrnll be a mh,dr:mennor.. '4. I _. ....... ---::-.. --.....-~----------------- 0 < ro C, II) -' 0 • C: c., '"' !.'; ti c,~ ou.l!J~ oo?G • .,. 7-cc o>-3!o i5!::<!.': 0 ,-_, u:,:5<( wU i •->-~ . ' i5 ~ t~ ~ t.> i:: -m 7-0 ~ > I= c:: <: <: ~-l) 0 1 2 3 4 5 6 7 8 9 10 11 12 13 1,1 15 16 17 18 19 20 21 22 2·1. ,:, 24 25 26 27 2B (2) Cause for revocation or supension of the license. (3) A public nuisance \lhich may be abated purnuant to the provisions of: state law. This remedy, is in addition to any other remedy proviclcd by law, including the penalty provision applicable to violation of the terms and provisions of this coae. 5.18.090 Constitutionality. If any section, subsection, sentence\ clause or phrase of this chapter is for any rea~on held to be i~valid, such decision shall not affect the validity of the remaining portions of thio chapter. The council declares that it would have adopted this chapter and each section, subsection, sentence, clause or phrase hereof separately, irrespective of the fact that any one or more of the sections, subsections, sentences, clauses or phrases be declared invalid. SECTION 2: 'rhat Title 21, chapter 21. 4 2 of the Carlsbad Municipal Code is amended by the addition of section 21.42.010(5)(BB) to read as follows: (BB) Drug paraphernalia stores as defined in chapter 5.18 of this code subject to the following conditions: (i) No drug paraphernalia store shall be located within 500 feet of any school, church, residence, residential area, childrens camp or club, child care facility, community center, library, park, public beach or playground~ (ii) No drug paraphernalia sto~e shall have a sign or advertisement which displays, shows or represents drug paraphernalia or any illegal drug including but not limited to, marijuana, hashish, cocaine, or any controlled substance as defined in the Dealth and Safety Code of the state of California. SECTION 3: 'l'he City Council hereby declares that it would have passed this ordinance phrase by phrase, sentence by sentence, paragraph by paragraph and section by section, and does he~eby declare that the provisions of this.ordinance are severnble and, if for any ruason any sentence, paragraph, or section of this ordin~nce shall be held invalid, nuch decision shall not affect the validity of the remaining parts of this ord.inunce. ,5. l 2 3 4 5 6 7 8 9 10 11 ·12 0 <( CD co 13 "' -J 0 • r:: 0 <'I !; c) Ol 14 • Ill<( :0 ll. :> z :r-i O l(" :;:: >-1:1 0 :2 ... > u. 15 '!.)-<- ' O;;..I ;i,,; • .J <( , > U1 0 16 :!: ~ 8 o }UJ ZN <f: t> c:: -ro 1Z O v, 17 ,> I= ~ ' <( <( . > . 0 18 ... 0 19 20 21 22 23 24 25 26 27 28 EFFECTIVE Dl\TE: 'l'his orclinance shall be effective thirty days·after ita adoption, ana the City Clerk shall certify to the adoption of this ordinance and cause it to be published at least once in the Carlsbad Journal within fifteen days after .. its adoption. INTRODUCED AND FIRST READ at a regular meeting of the. Carlsbad City Council held on the day of I 19 82, and thereafter PASSED AND ADOPTED at a regular meeting of said Ci~y Council held on the day of , 1982, by ------------- the following vote, to wit: AYES: NOES: ABSF.NT: MARY II. CASLER, Mayor AT'l'EST: ALJ::'l'llA L. HAU'l'ENI<Rl\NZ, City Clerk (SEAL) 6.