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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 01/05/2016 - ITEMS RELATING TO UNDERAGE POSSESSION AND CONSUMPTAgenda Item 9 Item # 9 Page 1 AGENDA ITEM SUMMARY January 5, 2016 City Council STAFF Jeremy Yonce, Police Lieutenant SUBJECT Items Relating to Underage Possession and Consumption of Alcohol and Marijuana Offenses and Consistency with State Law. EXECUTIVE SUMMARY A. First Reading of Ordinance No. 004, 2016, Amending Chapter 17 of the Code of the City of Fort Collins to Establish an Offense for Underage Possession or Consumption of Ethyl Alcohol. The purpose of this item is to create a municipal misdemeanor offense that mirrors the state law on underage possession and consumption of alcohol. B. First Reading of Ordinance No. 005, 2016, Amending Chapter 17 of the Code of the City of Fort Collins to Bring the Existing Underage Code Offenses for Possession or Consumption of Marijuana into Conformity with State Law. The purpose of this item is to bring the current underage possession and consumption of marijuana municipal misdemeanor offenses into conformity with state law. STAFF RECOMMENDATION Staff recommends adoption of the Ordinances on First Reading. BACKGROUND / DISCUSSION Staff desires to deter under-age drinking to improve the health and safety of our Community. The proposed MIP ordinance enables staff to have a municipal option for underage drinking that mirrors State law and provides consistent standards to under-age persons who possess or consume alcohol as well as marijuana. Illegal possession and consumption of alcohol by persons under twenty-one years of age is a problem across the nation, as well as in the City of Fort Collins. The following is some of the data that has been collected: (1) According to the Center for Disease Control, a survey of high school students found that 34.9% drank at least 1 day during the 30 days prior to the survey given. (2) According to the Office of Juvenile Justice and Delinquency Prevention, people aged 12 to 20 years drink 11% of all alcohol consumed in the United States. More than 90% of this alcohol is consumed in the form of binge drinks. (3) According to CSU Extension, a division of the Office of Engagement, teens across Colorado are no different than those across the United States. 81% of Colorado’s youth state that they have tried alcohol at some point in their life by the 12th grade. Almost 19% had their first drink prior to age 13. Agenda Item 9 Item # 9 Page 2 Fort Collins Police officers have firsthand knowledge of the impact underage drinking has in our Community. They routinely witness things such as an increase in disruptive behaviors, noise, kids roaming through neighborhoods, vandalism, urinating in public, medical emergencies, violent crimes, rape, altercations, DUI’s ,etc. that are directly attributable to underage alcohol consumption. Some of the benefits of having a municipal MIP ordinance are listed below: 1. The ability to include MIP when other municipal violations are being charged, which allows for focus on the issue of underage drinking. 2. The ability to include underage drinking as one of the charges/issues in our holistic approach with the police, city prosecutor, municipal judge, CSU, and other partners in addressing illegal, risky and disruptive behaviors with alternative sentences, educational classes, and CSU intervention/sanctions. 3. Affords minors the opportunity to have the case adjudicated in municipal court for the City’s policies and priorities to influence the process. 4. Reduces the chances that a defendant would receive charges in both municipal court and county court. Finally, the reason for the proposed ordinance regarding underage marijuana offenses is to bring existing code language into consistency with state law with respect to sealing of records and exceptions to the prohibition on underage possession. CITY FINANCIAL IMPACTS There may be a financial impact on the Municipal Court and on City Attorney’s Office prosecutions staffing due to the staff time necessary to process the additional caseload, monitor condition compliance depending upon the volume of cases, seal records, and report to the state Department of Motor Vehicles when necessary. The level of impact will depend upon the level of enforcement activity. The Court will likely recommend the adoption of a new fee to offset the additional staff expense in the near future. ORDINANCE NO. 004, 2016 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 17 OF THE CODE OF THE CITY OF FORT COLLINS TO ESTABLISH AN OFFENSE FOR UNDERAGE POSSESSION OR CONSUMPTION OF ETHYL ALCOHOL WHEREAS, Section 17-141 of the City Code prohibits all persons from carrying or drinking liquor or fermented malt beverages in certain places; and WHEREAS, the City Code does not currently include a provision related to underage possession or consumption of alcohol; and WHEREAS, incidents of illegal possession and consumption of alcohol by persons under twenty-one years of age in the City have increased; and WHEREAS, the City seeks to deter such incidents by including a specific provision in the City Code designed to apply to persons under twenty-one years of age who possess or consume alcohol. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. Section 2. That Section 17-141 of the Code of the City of Fort Collins is hereby amended by the addition of two new definitions, “Ethyl alcohol” and “Possession of ethyl alcohol” which read in their entirety as follows: Ethyl alcohol shall mean any substance which is or contains ethyl alcohol and includes fermented malt beverage, malt liquor, vinous liquor and spirituous liquor as defined in the Colorado Beer Code and the Colorado Liquor Code. Possession of ethyl alcohol shall mean that a person has or holds any amount of ethyl alcohol anywhere on his or her person, or that a person owns or has custody of ethyl alcohol, or has ethyl alcohol within his or her immediate presence and control. Section 3. That Chapter 17 of Article IX of the Code of the City of Fort Collins is hereby amended by the addition of a new Section 17-167 which reads in its entirety as follows: Sec. 17-167. Underage possession or consumption of alcohol prohibited. (a) No person under twenty-one (21) years of age may: (1) Obtain or attempt to obtain any ethyl alcohol by misrepresentation of age or by any other method in any place where ethyl alcohol is sold; or (2) Possess or consume any ethyl alcohol anywhere in the City. (b) A violation of any provision of subsection (a) of the section shall be a strict liability offense. It shall be an affirmative defense to the offenses described in subsection (a)(1) and (a)(2) above that the ethyl alcohol was possessed or consumed by a person under twenty-one (21) years of age under the following circumstances: (1) The person was legally upon private property with the knowledge and consent of the owner or legal possessor of such private property and the ethyl alcohol was possessed or consumed with the consent of his or her parent or legal guardian who was present during such possession or consumption; (2) The existence of ethyl alcohol in a person's body was due solely to the ingestion of a confectionery which contained ethyl alcohol within the limits prescribed by section 25-5-410(1)(i)(II), C.R.S.; or the ingestion of any substance which was manufactured, designed, or intended primarily for a purpose other than oral human ingestion; or the ingestion of any substance which was manufactured, designed, or intended solely for medicinal or hygienic purposes; or solely from the ingestion of a beverage which contained less than one-half of one percent of ethyl alcohol by weight; (3) The person was a student who tasted but did not imbibe an alcohol beverage only while under the direct supervision of an instructor. Such instructor must have been at least twenty-one (21) years of age and employed by a post- secondary school. Such student shall have been enrolled in a university or a post- secondary school accredited or certified by an agency recognized by the United States department of education, or a nationally recognized accrediting agency or association, or the "Private Occupational Education Act of 1981", article 59 of title 12, C.R.S. Such student must have participated in a culinary arts, food service, or restaurant management degree program, and must have tasted but not imbibed the alcohol beverage for instructional purposes as a part of a required course in which the alcohol beverage, except the portion the student tasted, remained under the control of the instructor; (4) The possession or consumption takes place for religious purposes protected by the First Amendment of the United States Constitution; or (5) The person is participating in a supervised and bona fide investigation conducted by a law enforcement agency. (c) An underage person shall be immune from criminal prosecution under this section if he or she establishes the following: (1) The underage person called 911 and reported in good faith that another underage person was in need of medical assistance due to alcohol consumption; (2) The underage person who called 911 provided his or her name to the 911 operator; (3) The underage person was the first person to make the 911 report; and (4) The underage person who made the 911 call remained on the scene with the underage person in need of medical assistance until assistance arrived and cooperated with medical assistance or law enforcement personnel on the scene. (d) The testimony regarding the label of a bottle, can or other container will not constitute hearsay. (e) A label which identifies the contents of any bottle, can or other container as “beer,” “ale,” “malt beverage,” “fermented malt beverage,” “malt liquor,” “wine,” champagne,” “whiskey,” “gin,” “vodka,” “tequila,” “schnapps,” “brandy,” “cognac,” “liqueur,” “cordial,” “alcohol,” or “liquor” shall constitute primae facie evidence that the contents of the bottle, can or other container was composed in whole or part of ethyl alcohol. (f) Evidence that the defendant was under the age of twenty-one (21) years, and manifested any of the characteristics commonly associated with ethyl alcohol intoxication or impairment while present anywhere in the City, shall be prima facie evidence of the violation of subsection (a) (2). (g) The Municipal Court shall report violations of this Section and the failure to complete an alcohol education program to the Colorado Department of Revenue pursuant to C.R.S., 42-2-131. (h) Upon dismissal of a case after a completion of a deferred judgment or diversion or any other action resulting in dismissal of the case or upon completion of the court- ordered substance abuse education and payment of any fine for a first conviction of this Section, the Municipal Court shall immediately order the case sealed and provide to the underage person and the prosecutor a copy of the order sealing the case for distribution by the appropriate party to all law enforcement agencies. Introduced, considered favorably on first reading, and ordered published this 5th day of January, A.D. 2016, and to be presented for final passage on the 19th day of January, A.D. 2016. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 19th day of January, A.D. 2016. __________________________________ Mayor ATTEST: _______________________________ City Clerk ORDINANCE NO. 005, 2016 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 17 OF THE CODE OF THE CITY OF FORT COLLINS TO BRING THE EXISTING UNDERAGE CODE OFFENSES FOR POSSESSION OR CONSUMPTION OF MARIJUANA INTO CONFORMITY WITH STATE LAW WHEREAS, the City Council is considering Ordinance No. 004, 2016, which would prohibit persons under twenty-one years of age from consuming and possessing alcohol; and WHEREAS, persons under twenty-one years of age are currently prohibited from consuming and possessing recreational marijuana, and medical marijuana without proper credentials; and WHEREAS, the state law prohibits the illegal possession and consumption of alcohol and marijuana by underage persons, allows for specific exceptions to criminal prosecution, details instances of prima facie evidence, and imposes a requirement upon the court to automatically seal underage records; and WHEREAS, proposed Ordinance No. 004, 2016, is consistent with such state law provisions as they relate to alcohol; and WHEREAS, the current City Code prohibiting persons under twenty-one years of age from consuming and possessing marijuana does not include such provisions; and WHEREAS, staff recommends adoption of the provisions provided herein to mirror the state law on underage marijuana consumption and possession; and WHEREAS, City Council has determined that the proposed amendments to City Code Section 17-191 are in the best interests of the City. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. Section 2. That Section 17-191 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 17-191. - Consumption and possession of marijuana. (a) Any consumption of recreational marijuana that is conducted openly and publicly is prohibited. (b) Any consumption of medical marijuana that is in plain view of, or in a place open to, the general public is prohibited. (c) No person under twenty-one (21) years of age shall consume or possess recreational marijuana. (d) No person under twenty-one (21) years of age shall consume or possess medical marijuana unless he or she is a patient or primary caregiver in possession of a valid registry identification card pursuant to Article XVIII, Section 14 of the Colorado Constitution. (e) No person shall possess more than one (1) ounce of recreational marijuana or more than two (2) ounces of medical marijuana. (f) The possession or consumption of marijuana shall not constitute a violation of subsections (c) and (d) if such possession or consumption takes place for religious purposes protected by the first amendment to the United States Constitution. (g) An underage person shall be immune from criminal prosecution under this section if he or she establishes the following: (1) The underage person called 911 and reported in good faith that another underage person was in need of medical assistance due to marijuana consumption; (2) The underage person who called 911 provided his or her name to the 911 operator; (3) The underage person was the first person to make the 911 report; and’ (4) The underage person who made the 911 call remained on the scene with the medical assistance or law enforcement personnel on the scene. (h) Prima facie evidence of a violation of subsections (c) and (d) shall consist of: (1) Evidence that the defendant was under twenty-one (21) years of age and possessed or consumed marijuana anywhere in the City. (2) Evidence that the defendant was under twenty-one (21) years of age and manifested any of the characteristics commonly associated with marijuana impairment while present anywhere in the City. (i) Upon dismissal of a case after a completion of a deferred judgment or diversion or any other action resulting in dismissal of the case or upon completion of the court- ordered substance abuse education and payment of any fine for a first conviction of this subsection (c) or subsection (d), the Municipal Court shall immediately order the case sealed and provide to the underage person and the prosecutor a copy of the order sealing the case for distribution by the appropriate party to all law enforcement agencies. Introduced, considered favorably on first reading, and ordered published this 5th day of January, A.D. 2016, and to be presented for final passage on the 19th day of January, A.D. 2016. __________________________________ Mayor ATTEST: _____________________________ City Clerk Passed and adopted on final reading on this 19th day of January, A.D. 2016. __________________________________ Mayor ATTEST: _____________________________ City Clerk