HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 05/12/2015 - SOCIAL HOST AND MINOR IN POSSESSION OFFENSESDATE:
STAFF:
May 12, 2015
Laurie Kadrich, Community Development &
Neighborhood Services Dir
Jeremy Yonce, Police Lieutenant
WORK SESSION ITEM
City Council
SUBJECT FOR DISCUSSION
Social Host and Minor in Possession Offenses.
EXECUTIVE SUMMARY
The purpose of this item is to consider whether to move forward with draft ordinances intended to: 1) prohibit the
promotion or facilitation of possession or consumption of alcohol or marijuana by persons under the age of
twenty-one (21) by holding accountable "hosts" who are present and have control of the access or use of
premises, and 2) prohibit a person less than twenty-one (21) years of age from possessing or consuming alcohol.
GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED
1. Should staff develop a public engagement plan to consider Social Host (SHO)?
2. Should staff develop a public engagement plan to consider underage possession or consumption of
alcohol?
3. What time frame is appropriate for public review and comment?
BACKGROUND / DISCUSSION
There is not a standard SHO used by all communities. Staff researched numerous communities, and found a
variety of approaches employed, some criminal and some civil in nature. The level of knowledge or active
participation by the “host” or owner varies widely from jurisdiction to jurisdiction. Additionally, some ordinances
combined the concepts of a social host with large social gatherings and unreasonable noise.
Fort Collins currently has provisions addressing both nuisance gatherings and unreasonable noise. The nuisance
gathering provision in the City Code is primarily designed to deter large social gatherings, rather than specifically
focusing on situations involving underage drinking and/or marijuana use. This Code provision only holds property
owners and hosts of a nuisance gathering criminally liable if such persons sponsor, conduct, host, or knowingly
permit a nuisance gathering. The unreasonable noise provision is similarly designed to deter large social
gatherings, and also to prevent disruptive noise, rather than preventing underage drinking.
Team Fort Collins (TFC) advocates enacting a SHO in Fort Collins and requested that Council consider enacting
such an Ordinance. TFC has been providing alcohol and drug prevention services to the Fort Collins community
since 1989. TFC is dedicated to promoting healthy lifestyles through the prevention of substance abuse and
believes that enacting a SHO will be a step in that direction for Fort Collins. TFC has begun to distribute materials
and provide community education as to the need for such an ordinance. Their goal is to reduce underage
drinking and marijuana use. Both Police and Neighborhood Services staff have met with TFC and Colorado State
University (CSU) leaders and discussed the potential for implementing such an Ordinance.
Proponents of the SHO seek to hold property owners, occupants, and tenants or others having possessory
control of any premises where a person under the age of twenty-one (21) obtains, possesses or consumes an
alcoholic beverage or marijuana strictly liable. Strict liability means absolute legal responsibility without proof of
intent, knowledge, carelessness or fault. This would be in the form of a civil infraction violation rather than a
criminal violation.
May 12, 2015 Page 2
Communities have found that criminal laws designed to target those that provide liquor to underage drinkers are
hard to prove and therefore difficult to enforce. A host will usually claim that they had no actual knowledge of
underage drinking; relieving him or her of legal accountability even though they were aware that underage
consumption was likely occurring. Unless it can be shown that they personally provided alcohol to an underage
drinker, it is hard to enforce. Fort Collins faces a similar challenge with the use of the state charge of “Contributing
to the Delinquency of a Minor”.
Many communities also include the homeowners or landlords for potential enforcement of the SHO. The idea is
that a homeowner (possibly a parent) who knowingly allows underage consumption to occur at his/her home,
even if not present, should have some accountability for such a decision. A parent might decide to allow his or her
underage child to drink in his or her home, but shouldn’t be able to make that decision for other parents.
Conversely, a landlord that is made aware that such parties are occurring at a rental property, who takes no
action to impact such parties, could be held responsible in some fashion. Some communities only take action
against property owners after sufficient notice and education has been provided and the property owners failed to
act or continued to allow such gatherings to occur.
The proposed draft SHO (Attachment #1) holds “hosts” who are present and have control and access or use of
premises, but only to the extent they are in use for private events or private uses (i.e. a park shelter in use for a
private gathering or a reception hall at the Lincoln Center in use for a private wedding party) where underage
drinking is occurring accountable. Such hosts are accountable, regardless of whether other issues, such as noise
or other party-related impacts are present. A violation of the SHO is a civil infraction with the potential of turning
into a criminal offense upon a third violation of the SHO within a twelve month period.
It is also important to note that the current provision in the City Code regarding public nuisance would apply to the
owner or landlord of the property upon which the social host ordinance was violated if there were two or more
violations within a six month period or five or more separate violations within a twenty-four-month period.
Those expressing concern about a social host ordinance believe Fort Collins already has a number of existing
laws and ordinances addressing house parties and underage drinking and marijuana use: Unreasonable Noise,
Nuisance Gatherings, Disorderly Conduct, Open Container/Consumption, etc. The data related to its
effectiveness is limited and mixed, with findings showing no association with a SHO and where and how much
underage consumption occurs. Additionally, many SHO’s around the country were adopted to curtail parents
hosting parties for high school students and friends. Opponents believe a SHO overreaches bounds of
responsibility of owners, landlords, and property managers for the unknown actions of others, and therefore
questions the need for a SHO in relation to community needs and eventual impact.
The proposed draft Underage possession or consumption of alcohol Ordinance (Attachment #2) creates a
municipal ordinance violation, similar to the state statute violation, which prohibits a person less than twenty-one
years of age from possessing or consuming alcohol. A violation of such municipal ordinance is a criminal
misdemeanor that for a first offense can be removed from the person’s record.
The draft ordinances as described above may be less controversial due to many components of more
comprehensive SHO’s from other jurisdictions already in place in Fort Collins, and that landlord liability is already
in place through the Public Nuisance Ordinance. Additionally, the Underage possession or consumption
Ordinance would provide another enforcement method to further prevent underage drinking. As such, staff
prepared draft ordinances for Council’s consideration.
Next Steps:
A Staff project team was established to further evaluate the impacts and opportunities of enacting a SHO in Fort
Collins. Significant resistance to the strict liability provisions within the SHO has been experienced in other
communities; however, because of the Public Nuisance Ordinance that is already in place, there may not be as
great of a concern regarding these recommendations in Fort Collins. However, staff suggests a comprehensive
public engagement plan be resourced prior to consideration of any SHO.
May 12, 2015 Page 3
ATTACHMENTS
1. Strict Liability Parent to Minors Draft Ordinance (DOCX)
2. Minor in Possession of Alcohol Draft Ordinance (DOCX)
3. PowerPoint Presentation (PDF)
LEGAL REVIEW PENDING
Pending/strict liability parent to minors ORD
ORDINANCE NO. XXX
OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 17
OF THE CODE OF THE CITY OF FORT COLLINS TO PROHIBIT A SOCIAL HOST FOR
POSSESSION OR CONSUMPTION OF ETHYL ALCOHOL OR MARIJUANA BY
PERSONS UNDER TWENTY-ONE YEARS OF AGE
WHEREAS, persons under the age of twenty-one often obtain, possess or consume
alcoholic beverages and marijuana at private residences or other property under the control of a
person who knows or should know of such conduct; and
WHEREAS, underage consumption of both alcoholic beverages and marijuana poses an
immediate threat to the public health, safety and welfare in that it leads to increased physical
altercations and an overall increase in rate of crime, which often requires intervention by local
law enforcement; and
WHEREAS, the City Code currently addresses, through the City’s unreasonable noise
and nuisance gathering provisions, large social gatherings that become noisy or unruly where
underage consumption of both alcohol and marijuana occurs, however, the Code does not have a
specific provision to address a person who acts as a social host at a private residence or other
property where underage possession or consumption of both alcohol and marijuana occurs; and
WHEREAS, the imposition of a strict liability standard on a person who is responsible
for allowing the underage possession or consumption of alcohol and marijuana to occur is
necessary to deter and prevent such happenings; and
WHEREAS, the prohibitions found in this Section are reasonable and expected to deter
underage persons from obtaining, possessing and consuming alcohol and marijuana by imposing
a civil fine and strict liability on responsible persons who are aware of, or should be aware of the
illegal conduct; and
WHEREAS, for these reasons, the City Council believes that these amendments to the
City Code are in the best interests of the citizens of Fort Collins.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That Section 17-161 of the Code of the City of Fort Collins is hereby
amended by the addition of two new definitions “Ethyl alcohol”, “Marijuana” and “Private
place” 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.
LEGAL REVIEW PENDING
Pending/strict liability parent to minors ORD
Marijuana shall have the same definition as in Section 17-190 of this Code.
Private place shall mean a property, building or structure, owned, occupied or in use for
private purposes, including, but not limited to, a home, apartment, condominium, place of
business or employment, outdoor patio or yard, including any common areas or other
dwelling units, or a hall or meeting space or privately reserved area within a public
facility or property, whether occupied on a temporary or permanent basis, and whether
occupied as a dwelling, or for a social function or other use, and whether owned, leased,
rented or used with or without compensation. Private place does not include a liquor-
licensed establishment when in operation pursuant to said liquor license.
Section 2. That Article IX of Chapter 17 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. Social host for ethyl alcohol or marijuana possession or consumption
by persons under twenty-one years of age.
(a) A person shall be liable as a social host if:
(1) such person had control of the access to or use of a private place; and
(2) such person was present at such private place while the possession or
consumption of either ethyl alcohol or marijuana by an individual under twenty-
one (21) years of age occurred.
(b) A violation of subsection (a) of this Section is a strict liability offense.
(c) The prohibition set forth in subsection (a), of this Section does not apply to
situations in which:
(1) A person under twenty-one (21) years of age was legally at a private place
with the knowledge and consent of a person who had control of the access to or
use of such private place and possessed or consumed ethyl alcohol with the
consent of the individual’s parent or legal guardian who was present during such
possession or consumption;
(2) A person under twenty-one (21) years of age possessed or consumed
medical marijuana pursuant to Article XVIII, Section 14 of the Colorado
Constitution, and possessed a valid registry identification card;
(3) A person who consumed ethyl alcohol 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
LEGAL REVIEW PENDING
Pending/strict liability parent to minors ORD
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 took place for religious purposes protected
by the First Amendment of the United States Constitution; or
(5) The possession or consumption took place during the course of a
supervised and bona fide investigation conducted by a law enforcement agency.
(d) Any person found liable for violating this Section commits a civil infraction and
is subject to penalty provisions of Subsection 1-15(f) of the Code.
Introduced, considered favorably on first reading, and ordered published this ___ day of
___________, A.D. 2015, and to be presented for final passage on the ___ day of ______, A.D.
2015.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk
Passed and adopted on final reading on this ____ day of ________, A.D. 2015.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk
LEGAL REVIEW PENDING
Pending/minor in possession of alcohol ORD
ORDINANCE NO. XXX
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 have 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 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 2. 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
LEGAL REVIEW PENDING
Pending/minor in possession of alcohol ORD
(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;
LEGAL REVIEW PENDING
Pending/minor in possession of alcohol ORD
(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,” “male 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 ___ day of
___________, A.D. 2015, and to be presented for final passage on the ___ day of ______, A.D.
2015.
__________________________________
Mayor
ATTEST:
LEGAL REVIEW PENDING
Pending/minor in possession of alcohol ORD
_____________________________
City Clerk
Passed and adopted on final reading on this ____ day of ________, A.D. 2015.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk
5-24-15
Social Host and
Underage Consumption-
Possession Ordinances
City Council Work Session
April 28, 2015
Laurie Kadrich, CDNS Director
General Direction Sought
1. Does City Council direct staff to develop a public
engagement plan to the consider a Social Host
Ordinance (SHO)?
2. Does City Council direct staff to develop a public
engagement plan to consider underage possession or
consumption of alcohol?
3. What time frame is appropriate for public review and
comment?
2
3
Social Host Ordinance
• Intended to Prevent
Underage Drinking
• Holds owner and/or
“host” responsible
• “Mirrors” local
Public Nuisance
Ordinance notice
requirements
Public Nuisance Ordinance
1. Currently in place to address primarily:
• Nuisance gatherings
• Unreasonable noise
2. Holds property owners liable:
• Knowingly permit
• Civil penalty after notices of violations
4
Underage possession –
consumption Ordinance
• Creates Local
Ordinance
• Prohibits a person
less than 21 from
possession or
consuming alcohol
• “Mirrors” State law by
sealing record on first
offense
5
6
Community Concerns
• Team Fort Collins
• Colorado State
University
• Property Owners;
including parents
General Direction Sought
1. Does City Council direct staff to develop a public
engagement plan to the consider a Social Host
Ordinance (SHO)?
2. Does City Council direct staff to develop a public
engagement plan to consider underage possession or
consumption of alcohol?
3. What time frame is appropriate for public review and
comment?
7