Item 1.13 - Adoption of Ord. 828 Amending CH. 9.54APPROVED □
APPROVED AS AMENDED □
City of Poway
COUNCIL AGENDA REPORT
(SEE MINUTES)
DENIED
REMOVED
□ □
CONTINUED ____ _
DATE: June 18, 2019
TO: Honorable Mayor and Members of the City Council
FROM: Faviola Medina, City Clerk '01"
CONTACT: Faviola Medina, City Clerk
(858) 668-4535 or fmedina@poway.org
Ordinance No. ____ _
SUBJECT: Second Reading and Adoption of Ordinance No. 828 entitled "An Ordinance 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."
Summary:
The introduction and first reading of the above-entitled Ordinance was approved at a Regular City
Council Meeting on June 4, 2019. All Councilmembers were present at the first reading with the
exception of Councilmember Mullin. There were two speakers.
The Ordinance is now presented for second reading and adoption by title only.
Vote at first reading: AYES:
ABSTAINED:
ABSENT:
DISQUALIFIED:
LEONARD,FRANK,GROSCH,VAUS
NONE
MULLIN
NONE
Recommended Action:
It is recommended that the City Council adopt Ordinance No. 828.
Fiscal Impact:
None.
Environmental Review:
The adoption of the proposed Ordinance is not a "project" that is subject to CEQA review because
it will not result in direct physical change in the environment, or a reasonably foreseeable indirect
physical change in the environment.
1 of 8 June 18, 2019, Item #1.13
Public Notification:
A summary notice was published in the Poway News Chieftain on Thursday, June 13, 2019. A
second summary notice will be published in the same publication on Thursday, June 27, 2019. A
certified copy of this Ordinance will also be posted in the Office of the City Clerk in accordance
with Government Code section 36933.
Attachment:
A Ordinance No. 828
Reviewed/Approved By:
!a�.�
Assistant City Manager
Reviewed By:
Alan Fenstermacher
City Attorney
2 of 8 June 18, 2019, Item #1.13
ORDINANCE NO. 828
AN OR DINANCE 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 PR OHIBITED
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
$Ocial hosts who are aware, or should be aware, of the consumption of marijuana and other
3 of 8 June 18, 2019, Item #1.13ATTACHMENT A
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 strikethroughs 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
follows:
SECTION 4: Sections 9.54.010 through 9.54.050 of the PMC is hereby by amended as
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 18, 2019, Item #1.13
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 drug 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.
F."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.
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 for a party
or other social function, and whether owned, leased, rented, or used with or without
compensation.
5 of 8 June 18, 2019, Item #1.13
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 reside nce 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 (8)(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, marijuana, 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.
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
6 of 8 June 18, 2019, Item #1.13
and his or her parent or legal guardian, as permitted by Article I, Section 1, 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.L
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 (8)(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.
EFFECTIVE DATE: This Ordinance shall take effect and be in force thirty (30) days after
its adoption.
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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 18, 2019, Item #1.13