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Item 2.1 - Ord. Amending the City's Social Host Ord..j OF POW �y City of Poway COUNCIL AGENDA REPORT ren, M THE CJS' DATE: June 4, 2019 TO: Honorable Mayor and Members of the City Council FROM: Alan Fenstermacher, City Attorney CONTACT: Alan Fenstermacher, City Attorney REMOVED 858-668-4508, afenstermacher(cDpoway.ora APPROVED ❑ APPROVED AS AMENDED ❑ (SEE MINUTES) DENIED ❑ REMOVED ❑ CONTINUED RESOLUTION NO. SUBJECT: Ordinance Amending the City's Social Host Ordinance (Chapter 9.54 of the Poway Municipal Code) to Include Marijuana and Other Controlled Substances in Addition to Alcohol Summar: On November 8, 2016, California's voters passed Proposition 64, the Adult Use of Marijuana Act (AUMA), which authorized adults 21 years of age or older to legally grow, possess, and use marijuana for non -medicinal purposes, with certain restrictions, and additionally made it legal to sell and distribute marijuana through a properly regulated business. AUMA expressly authorizes cities to regulate use and sale of marijuana within their jurisdiction, except as otherwise specifically and expressly provided. The AUMA does not authorize consumption of marijuana by minors. Chapter 9.54 of the Poway Municipal Code (the "Social Host Ordinance") currently imposes criminal liability on social hosts who are aware, or should be aware, of consumption of alcohol by minors in residences under their control, yet fail to prevent it, and further imposes civil liability for the recovery of the costs of enforcement services, including reasonable attorneys' fees. Chapter 9.54 does not currently regulate the consumption of marijuana and other controlled substances by minors, which has similar negative consequences as the consumption of alcohol by minors. In light of the passage of the AUMA, City staff has drafted the attached ordinance (Attachment A) amending the provisions of Chapter 9.54 of the Poway Municipal Code to include consumption of marijuana and other controlled substances by minors as substances regulated by the City's Social Host Ordinance, in addition to alcohol. commended Action: It is recommended that the City Council introduce the Ordinance for first reading by title only, waiving further reading, and schedule adoption of the attached Ordinance for June 18, 2019, Disr_ussion The proposed Ordinance recognizes that consumption of marijuana and other controlled substances by minors presents many of the same adverse effects as the consumption of alcoholic beverages, including juvenile delinquency, victimization, and adverse health effects. Therefore, City staff recommends amending the City's Social Host Ordinance to include marijuana and other controlled substances as substances that trigger the applicability of the same. Even though the AUMA did not legalize the consumption of marijuana by minors, the passage of this state law has made marijuana legally available to adults in California, and as a result, the need to amend the City's Social Host Ordinance has arisen. 1 of 8 June 4, 2019, Item #2.1 The proposed Ordinance would amend Chapter 9.54 by adding language to the existing provisions, extending the scopes to impose criminal liability on social hosts who are aware, or should be aware, of the consumption of marijuana and other controlled substances by minors in residences under their control, yet fail to prevent it, and to further impose civil liability for the recovery of the costs of enforcement services and to provide for the recovery of reasonable attorneys' fees in the event of litigation. The Ordinance is based on similar ordinances that have been adopted in cities that also contract with the County of San Diego Sheriff's Department for law enforcement services and has been prepared in consultation with the City's local Sheriff's Captain. The Ordinance would not amend the existing provisions of Chapter 9.54 in any other manner, but instead, the amendments are limited to simply adding marijuana and other controlled substances in addition to alcohol as a substance triggering the applicability of the Social Host Ordinance. Environmental Review: The adoption of the proposed Ordinance is not a "project" that is subject to CEQA review because it has no potential for resulting in physical change to the environment, directly or indirectly. Fiscal Impact: The City may incur incrementally increased costs associated with additional enforcement of compliance with the proposed expanded Social Host Ordinance. However, costs associated with enforcement services and attorneys' fees in the event of litigation are recoverable from those individuals that violate the Social Host Ordinance. Public Notification: None. Attachments: A. Ordinance Amending Chapter 9.54 of the Poway Municipal Code, showing amendments. Reviewed/Approved By: Reviewed By: Approved G aL AIAUU- — , aserman Aan Wend Assistant City Manager City Attorney City Manager 2 of 8 June 4, 2019, Item #2.1 ORDINANCE NO. 19.XX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA, AMENDING CHAPTER 9.54 OF THE POWAY MUNICIPAL CODE TO INCLUDE MARIJUANA AND OTHER CONTROLLED SUBSTANCES AS PROHIBITED SUBSTANCES IN ADDITION TO ALCOHOL WHEREAS, on November 8, 2016, California's voters passed Proposition 64, the Adult Use of Marijuana Act (AUMA), which authorized adults 21 years of age or older to legally grow, possess, and use Marijuana for non -medicinal purposes, with certain restrictions and additionally made it legal to sell and distribute marijuana through a regulated business; WHEREAS, AUMA took effect January 1, 2018, and expressly authorizes cities to regulate the use and sale of marijuana within their jurisdiction, except as otherwise specifically and expressly provided; WHEREAS, the City Council desires to limit the consumption of alcoholic beverages, marijuana, and other controlled substances by minors in the City, consistent with State law; WHEREAS, the City Council declares that the regulations enacted by this Ordinance are intended to promote and protect the health, safety, and welfare of the City's residents, businesses, and visitors and are in furtherance of the City's police powers; WHEREAS, the City Council declares that youth often obtain alcoholic beverages, marijuana, and other controlled substances at parties or other gatherings held at private residences or at rented residential and commercial premises, which are under the control of an adult who knows or should know of the illegal conduct and fails to stop it; WHEREAS, the City Council further declares that adults who will be held responsible for abetting or tolerating such conduct will be more likely to properly supervise or stop such parties or gatherings on property under their control; WHEREAS, the existing provisions of Chapter 9.54 of the Poway Municipal Code ("PMC"), entitled, "House Parties — Consumption of Alcohol by Minors" impose criminal liability on social hosts who are aware, or should be aware, of the consumption of alcoholic beverages by minors under their control yet fail to prevent it, and to further impose civil liability for the recovery of the costs of enforcement services and reasonable attorneys' fees in the event of litigation; WHEREAS, the City Council's purpose in enacting existing Chapter 9.54 was to curtail the consumption of alcohol by minors, in order to prevent the many adverse side effects of alcoholic beverage consumption by minors, including juvenile delinquency, victimization as well as adverse health effects; WHEREAS, the City Council declares that consumption of marijuana and other controlled substances by minors presents many of the same adverse effects as alcoholic beverage consumption by minors, including juvenile delinquency, victimization as well as adverse health effects; WHEREAS, the City Council desires to amend Chapter 9.54 to impose criminal liability on social hosts who are aware, or should be aware, of the consumption of marijuana and other 3 of 8 Attachment A June 4, 2019, Item #2.1 Ordinance No. 19.xxx Page 2 controlled substances by minors under their control yet fail to prevent it, and to further impose civil liability for the recovery of the costs of enforcement services and to provide for the recovery of reasonable attorneys' fees in the event of litigation; and WHEREAS, the City Council further declares that the regulations enacted by this Ordinance are intended and necessary to ensure the public welfare. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN AS FOLLOWS: SECTION 1: The above recitals are true and correct. SECTION 2: The City Council hereby approves this Ordinance and amends Chapter 9.54 of the PMC as specified below. Removals are indicated with stFikethiceugho and additions are indicated with underline. SECTION 3: The title of Chapter 9.54 of the PMC is hereby amended to read: "House Parties —Consumption of Alcohol, Marijuana, and Other Controlled Substances by Minors SECTION 4: Sections 9.54.010 through 9.54.050 of the PMC is hereby by amended as follows: 9.54.010 Purpose and intent. The City Council finds and determines that youth often obtain alcoholic beverages, marijuana, and other controlled substances at parties or other gatherings held at private residences or at rented residential and commercial premises, which are under the control of a person or persons who knows or should know of the illegal conduct and fails to stop it. The City Council further finds and determines that persons who will be held responsible for abetting or tolerating such conduct will be more likely to properly supervise or stop such parties or gatherings on property under their control. It is the purpose of this chapter to impose criminal liability on persons who are aware, or should be aware, of the illegal conduct yet fail to prevent it. It is the further purpose of this chapter to impose civil liability for the recovery of the costs of enforcement services and to provide for the recovery of reasonable attorneys' fees in the event of litigation. Most importantly, it is the purpose of this chapter to curtail the consumption of alcohol, marijuana, and other controlled substances by minors, in order to prevent the many adverse side effects of alcoholic beverage, marijuana, and other controlled substance consumption by minors, including juvenile delinquency and victimization as well as adverse health effects. 9.54.020 Definitions. Terms used in this chapter shall have the meaning given to them by state law except as expressly provided herein. A. "Adult" means a person who is 21 years of age or older. 4 of 8 June 4, 2019, Item #2.1 Ordinance No. 19.xxx Page 3 B. "Alcoholic beverage" means any liquid, gas, or solid material intended to be ingested by a person, which contains ethanol, also known as ethyl alcohol, drinking alcohol, or alcohol, including but not limited to alcoholic beverages as defined in Section 23004 of the Business and Professions Code, and which contains one percent or more of alcohol by volume; any intoxicating liquor; any malt beverage, beer, wine, spirits, liqueur, whiskey, rum, vodka, cordials, gin, and brandy; and any mixture containing one or more alcoholic beverages. "Alcoholic beverage" includes a mixture of one or more alcoholic beverages, whether found or ingested separately or as a mixture. C. "Control" means any form of dominion including ownership, tenancy, or other possessory right. D. "Controlled substance" means a druq or substance whose possession and use are regulated under the Controlled Substances Act. Such term does not include any drug or substance for which the individual found to have consumed such substance has a valid prescription issued by a licensed medical practitioner authorized to issue such a prescription. E. "Enforcement services" means the salaries and benefits of police officers or other code enforcement personnel for the amount of time actually spent in responding to, or in remaining at, the gathering; the administrative costs attributable to the incident; the actual cost of any medical treatment to injured police officers or other code enforcement personnel; the cost of repairing any damaged city equipment or property; and the cost arising from the use of any damaged city equipment in responding to or remaining at the gathering. E- I_ . "Gathering" means a party, gathering, or event, where a group of three or more persons have assembled or are assembling for a social occasion or social activity at a residence or premises. G. "Marijuana" shall have the same meaning as the term "Cannabis" set forth in section 11018 of the California Health & Safety Code, and shall also include the definition of "Cannabis products" set forth in section 11018.1 of the California Health & Safety Code. H. "Minor" means a person under the age of 21 years. G- I. "Residence" or "premises" means a hotel or motel room, home, yard, apartment, condominium, or other dwelling unit, or a hall or meeting room, whether occupied on a temporary or permanent basis, whether occupied as a dwelling or 5 of 8 June 4, 2019, Item #2.1 Ordinance No. 19.xxx Page 4 for a party or other social function, and whether owned, leased, rented, or used with or without compensation. H, J. "Social host" means a person who permits or allows a gathering where one or more minors consume one or more alcoholic beverages, marijuana, or other controlled substances on property owned or controlled by the person. 9.54.030 Property owner's duties and prohibitions. A. It shall be the duty of any person having control of any residence, real property, or premises, who hosts, permits, or allows a gathering to take place at said residence or premises to take all reasonable steps to prevent the consumption of alcoholic beverages, marijuana, and other controlled substances by any minor at the gathering. Whenever the person having control of the residence or premises either knows or should know a minor has consumed an alcoholic beverage, marijuana, or other controlled substance at the residence or premises in violation of this chapter, it is presumed that the person had the ability to take all reasonable steps to prevent the consumption of an alcoholic beverages, marijuana, and other controlled substances by a minor as set forth in subsection (B)(2) of this section; it is further presumed that the person has the ability to terminate the illegal conduct once it is, or should reasonably have been, discovered. B. No person who owns or has control of any residence or premises shall allow a gathering to take place or continue at the residence or premises if: 1. At the gathering any minor consumes any alcoholic beverage, marihuana, and other controlled substance; and 2. The person knows or reasonably should know by taking all reasonable steps to prevent alcoholic beverage, marijuana, and other controlled substance consumption by any minor, that a minor possesses or is consuming any alcoholic beverage, marijuana, and other controlled substance at the gathering. Reasonable steps are (a) controlling access to alcoholic beverages, marijuana, and other controlled substances at the gathering; (b) controlling the quantity of alcoholic beverages, marijuana, and other controlled substances present at the gathering; (c) verifying the age of persons attending the gathering by inspecting drivers' licenses or other government -issued identification cards to ensure that persons under the age of 21 years do not consume alcoholic beverages, marijuana, and other controlled substances while at the gathering; and (d) supervising the activities of minors at the gathering. C. This section does not apply to any location or place regulated by the California Department of Alcoholic Beverage Control. 6 of 8 June 4, 2019, Item #2.1 Ordinance No. 19.xxx Page 5 D. This section shall not apply to conduct involving the use of alcoholic beverages, marijuana, and other controlled substances that occurs exclusively between a minor and his or her parent or legal guardian, as permitted by Article I, Section 4, of the California Constitution. 9.54.040 Consumption of alcohol, marijuana, and other controlled substances by minor prohibited. Except as permitted by state law, it is unlawful for any minor to: A. Consume at any public place or any place open to the public any alcoholic beverage, marijuana, or other controlled substance; or B. Consume at any place not open to the public any alcoholic beverage, marijuana, or other controlled substance, unless in connection with the consumption of the alcoholic beverage, marijuana, or other controlled substance that minor is being supervised by his or her parent or legal guardian. 9.54.050 Prima facie evidence. Whenever a person having control of a residence or premises is present at that residence or premises at the time that a minor possesses or consumes any alcoholic beverage, marijuana, or other controlled substance thereon, it shall be prima facie evidence that such person had the knowledge or should have had the knowledge specified in PMC 9.54.030(A) or (13)(2). This section affects the burden of producing evidence. SECTION 5: The City Council finds the introduction and adoption of this ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. SECTION 6: Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance or its application to any person or circumstance, is for any reason held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this ordinance, or its application to any other person or circumstance. The City Council declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact of any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or enforceable. SECTION 7: This Ordinance shall be codified. 7 of 8 June 4, 2019, Item #2.1 Ordinance No. 19.xxx Page 6 EFFECTIVE DATE: This Ordinance shall take effect and be in force thirty (30) days after its adoption. CERTIFICATION/PUBLICATION: The City Clerk shall certify the adoption of this Ordinance and cause it or a summary of it, to be published with the names of the City Council members voting for and against the same in the Poway News Chieftain, a newspaper of general circulation in the City of Poway within fifteen (15) days after its adoption and shall post a certified copy of this Ordinance in the Office of the City Clerk in accordance with Government Code § 36933. INTRODUCED AND FIRST READ at a Regular Meeting of the City Council of the City of Poway, California, held the 4th day of June, 2019, and thereafter PASSED AND ADOPTED at a Regular Meeting of said City Council held the 18th day of June, 2019 by the following vote, to wit: AYES: NOES: ABSENT: DISQUALIFIED: Steve Vaus, Mayor ATTEST: Faviola Medina, CMC, City Clerk 8 of 8 June 4, 2019, Item #2.1