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