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Home My WebLink AboutCOW 2023-08-28 Item 4C - Ordinance - Amendments to TMC Chapter 8.07 Regarding Drug Possession (Reference: Blake Decision)COUNCIL AGENDA SYNOPSIS ,tv)* ' �, 4 Initials ITEM NO. Z Meeting Date Prepared by Mayor's review Council review Q sC40( ��%/- 8/28/23 EL 4.C. oc ,�/� O Spec 2.C. 190E ITEM INFORMATION STAFF SPONSOR: ERIC LUND ORIGINAL AGENDA DATE: 8/28/23 AGENDA ITEM TITLE Ordinance adopting amendments to TMC Chapter 8.07 regarding drug possession (Reference: Blake Decision) CATEGORY Mtg Discussion Date 8/28/23 ❑ Motion M Date ❑ Resolution Mtg Date 11 AN Ordinance Date 8/28/23 ❑ Bid Award M Date ❑ Public Hearing Mtg Date ❑ Other Mtg Date SPONSOR ❑ Council ❑ Mayor ❑ Admin Svcs ❑ DCD ❑ Finance ❑ Fire ❑ P&R 11 Police ❑ PW SPONSOR'S To adopt by reference new state statutes in chapter 69.50 RCW, prohibiting the possession SUMMARY of controlled, counterfeit, and legend drugs without a prescription, enabling City prosecution of those violations in Tukwila Municipal Court. REVIEWED BY ❑ Trans&Infrastructure Svcs I ❑ LTAC ❑ DATE: 8/28/23 Community Svcs/Safety ❑ Finance & Governance ❑ Planning & Community Dev. Arts Comm. ❑ Parks Comm. ❑ Planning Comm. COMMITTEE CHAIR: ABDI RECOMMENDATIONS: SPONsoR/ADMIN. Police Department COMMITTEE Forward to 8/28 Committee of the Whole & Special Meeting COST IMPACT / FUND SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED Fund Source: Comments: MTG. DATE RECORD OF COUNCIL ACTION 8/28/23 MTG. DATE ATTACHMENTS 8/28/23 Informational Memorandum dated 8/22/23 Draft ordinance 25 26 City of Tukwila Allan Ekberg, Mayor INFORMATIONAL MEMORANDUM TO: Community Services and Safety Committee FROM: Police Chief Eric Dreyer BY: Deputy Chief of Police Eric Lund City Attorney Kari Sand City Prosecutor Karen Lentz CC: Mayor Ekberg DATE: August 22, 2023 SUBJECT An Ordinance adopting provisions of 2E2SSB 5536, the so-called "Blake fix," to allow city prosecution of drug possession consistent with Washington state law. ISSUE To adopt by reference new state statutes in chapter 69.50 RCW, prohibiting the possession of controlled, counterfeit, and legend drugs without a prescription, enabling City prosecution of those violations in Tukwila Municipal Court. BACKGROUND In 2021, the Washington State Supreme Court decided the case of State v. Blake, which struck down Washington's criminal statute prohibiting possession of a controlled substance. Prior to the Blake decision, possession was a class C felony. The court reasoned that the lack of a requirement to prove knowledge of possession did not force the state to prove criminal intent, violating the defendant's right to due process. In response to the State v. Blake decision, the Legislature passed ESB 5476, which in part modified statutes prohibiting the possession of a controlled substance, counterfeit substance, legend drug, or 40 grams or less of cannabis, to require proof of knowing possession of the prohibited substances. These offenses are classified as misdemeanor crimes, punishable by up to 90 days in jail, a $1,000 fine, or both. Prosecutors are encouraged to divert such cases for assessment, treatment, and other services. The modifications to these possession statutes were set to expire on July 1, 2023. In May 2023, during a special session, the Washington Legislature passed 2E2SSB 5536, establishing a permanent "Blake fix." Pursuant to the bill, simple possession of controlled, counterfeit, and legend drugs without a prescription is prohibited. Violations of the new simple possession statutes are classified as either misdemeanors or gross misdemeanors. ANALYSIS Pursuant to Article XI, Section 11 of the Washington Constitution and RCW 35A.11.020, the city is authorized to enact ordinances and may impose penalties of fines not exceeding five thousand dollars or imprisonment for any term not exceeding one year, or both, for the violation of such ordinances, constituting a misdemeanor or gross misdemeanor. It is common throughout the Tukwila Municipal Code for the City to adopt existing state statutes for both misdemeanors and gross misdemeanors violations. 27 By function of state law, simple possession of controlled, counterfeit, and legends drugs is prohibited within the City. Adopting the prohibitions from 2E2SSB 5536 will enable the City Prosecutor to prosecute these violations in Tukwila Municipal Court. FINANCIAL IMPACT No financial impact is expected from the adoption of the Ordinance. RECOMMENDATION The Council is being asked to approve the Ordinance and consider this item at the August 28, 2023 Committee of the Whole meeting and subsequent August 28, 2023 Special Meeting. In order for the Ordinance to be effective immediately, a majority plus one (5 "yes" votes) of the whole membership of the Council is required consistent with RCW 35A.12.130. ATTACHMENTS Draft ordinance 28 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, AMENDING ORDINANCE NOS. 1363 §1 (PART), 1568 §2, AND 2049 §1, AS CODIFIED AT TUKWILA MUNICIPAL CODE (TMC) SECTION 8.07.010, "STATE STATUTES ADOPTED BY REFERENCE"; REPEALING ORDINANCE NO. 1363 §1 (PART), AS CODIFIED AT TMC SECTION 8.07.020, "POSSESSION PROHIBITED"; REPEALING ORDINANCE NOS. 1621 §1, 1808 §1, AND 2369 §1, AS CODIFIED AT TMC SECTION 8.07.040, "DRUG FREE ZONE — ENHANCED PENALTIES"; REENACTING TMC SECTION 8.07.020; PROVIDING FOR SEVERABILITY; DECLARING AN EMERGENCY AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, pursuant to Article XI, Section 11 of the Washington Constitution and RCW 35A.11.020, the City of Tukwila ("City"), a non -charter optional code city, is authorized to enact ordinances of all kinds relating to and regulating its local or municipal affairs, and may impose penalties of fines not exceeding five thousand dollars or imprisonment for any term not exceeding one year, or both, for the violation of such ordinances, constituting a misdemeanor or gross misdemeanor; and WHEREAS, in 2021, the Washington State Supreme Court struck down RCW 69.50.4013 in State v. Blake, 197 Wn.2d. 170, 481 P.3d 521 (2021), holding that strict liability for drug possession is unconstitutional. Prior to the Blake decision, possession was a class C felony. The Blake court reasoned that the lack of a requirement to prove knowledge of possession did not force the state to prove criminal intent, violating the defendant's right to due process; and WHEREAS, after Blake, the Washington State Legislature passed Engrossed Senate Bill ("ESB") 5476, which in part modified statutes prohibiting the possession of a controlled substance, counterfeit substance, legend drug, or 40 grams or less of cannabis, to require proof of knowing possession of the prohibited substances. These offenses were classified as misdemeanor crimes, punishable by up to 90 days in jail, a $1,000 fine, or both. Prosecutors were encouraged to divert such cases for assessment, treatment, and other services; and CC:\Legislative Development\Adoption of Blake Fix 8-11-23 Kari Sand Review by Andy Youn Page 1 of 6 29 WHEREAS, ESB 5476 contained a sunset clause whereupon the bill's provisions would expire on July 1, 2023, unless the Washington State Legislature took further action; and WHEREAS, on May 16, 2023, the Washington State Legislature passed Second Engrossed Second Substitute Senate Bill ("2E2SSB") 5536, which criminalized drug possession as either a misdemeanor or gross misdemeanor; and WHEREAS, the City Council now considers it in the best interest of the community to adopt certain provisions of 2E2SSB 5536 by reference to align the Tukwila Municipal Code ("TMC") with State law to prohibit the knowing possession of the prohibited substances. Possession of a controlled substance and possession of a counterfeit substance are classified as gross misdemeanor crimes and carry a potential maximum sentence of 364 days in jail, a $1,000 fine, or both. Possession of a legend drug and possession of an ounce or more of cannabis, or possession of any amount of cannabis for individuals under 21 years of age, remain misdemeanor crimes and carry a maximum sentence of 90 days in jail, a $1,000 fine, or both; and WHEREAS, the City Council also considers that rehabilitation and treatment are critical components to combating illicit drug use and desires to give those suffering from substance use disorders an opportunity to access that treatment in lieu of prosecution; and WHEREAS, the City Council now desires to adopt the amendments to TMC Chapter 8.07, "Controlled Substances, Paraphernalia, Poisons and Toxic Fumes," as set forth in this ordinance to harmonize the chapter with changes to state law effectuated by enactment of 2E2SSB 5536, and to adopt by reference all misdemeanor crimes identified in State law as necessary to protect the public health, safety, and welfare, and the City Council finds that a public emergency exists requiring these amendments to become effective immediately upon adoption in order for the City to effectively enforce the changes made by the Washington State Legislature; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Adoption of Findings of Fact. The City Council hereby adopts the foregoing recitals and incorporates them herein as support for these amendments. Section 2. TMC Section 8.07.010 Amended. Ordinance Nos. 1363 §1 (part), 1568 §2, and 2049 §1, as codified at TMC Section 8.07.010, "State Statutes Adopted by Reference," are hereby amended to read as follows: 8.07.010 State Statutes Adopted By Reference The following statutes of the State of Washington, as now in effect or as may be subsequently amended, are hereby adopted by reference as if set forth in full herein to non -felonies: CC:\Legislative Development\Adoption of Blake Fix 8-11-23 Kari Sand Review by Andy Youn 30 Page 2of6 RCW 69.41.030 RCW 69.50.101 RCW 69.50.102 RCW 69.50.204(d)(13) RCW 69.50.309 RCW 69.50.4011 RCW 69.50.4013 RCW 69.50.4014 RCW 69.50.4016 Sale, delivery, or possession of legend drug without prescription or order prohibited— Exceptions—Penalty. Definitions. Drug Paraphernalia–Definitions. Schedule I Marijuana. Containers. Counterfeit substances – Penalties. RCW 69.50.412 RCW 69.50.4121 Possession of controlled substance – Penalty – Possession of useable cannabis, cannabis concentrates, or cannabis -infused products – Delivery. Possession of Forty Grams or Less of Marijuana–Penalty. Provisions not applicable to offenses under RCW 69.50.410. RCW 69.50.420 RCW 69.50.425 RCW 69.50.435 RCW 69.50.505 RCW 69.50.506 RCW 69.50.509 Prohibited Acts: E–Penalties. Drug paraphernalia – Selling or giving – Penalty. Violations – Juvenile driving privileges. Misdemeanor Violations Minimum Imprisonment. Violations committed in or on certain public places or facilities – Additional penalty – Defenses – Construction – Definitions. Seizure and Forfeiture. Burden of Proof. Search and Seizure of Controlled Substances. Section 3. TMC Section 8.07.020 Repealed. Ordinance No. 1363 §1 (part), as codified at TMC Section 8.07.020, "Possession Prohibited," is hereby repealed, thereby eliminating this section. 8.07.020 Possession Prohibited. substances. CC:\Legislative Development\Adoption of Blake Fix 8-11-23 Kari Sand Review by Andy Youn Page 3 of 6 31 32 Section 4. TMC Section 8.07.040 Repealed. Ordinance Nos. 1621 §1, 1808 §1, and 2369 §1, as codified at TMC Section 8.07.040, "Drug Free Zone — Enhanced Penalties," are hereby repealed, thereby eliminating this section. 8.07.040 A. Drug Free Zone Enhanced Penalties. Any person who, in the drug free zones described in this section, violates kA • 1 I. within 1,000 feet of the perimeter of any such school or community center grounds, or in any public park listcd in TMC 8.07.040G, may be punished by a fine of up to twice the amcndmcnt thcrcto, or by both such doublcd fine and imprisonment. person was unaware that the prohibited conduct took place while in a school, or within 1,000 feet of the school, or in a public park. time of the offense, or that school was not in session. D. It is an affirmative defense to a prosecution for a violation of this section that the prohibited conduct took place entirely within a private residence, that no person preponderance of the evidence. This section shall not be construed to establish an section of this chapter or in any other law. E. In a prosecution under this section, a map produced or reproduced by any school district or the City of Tukwila for the purpose of depicting the location and • _ _ - _ • - . r of any property used for • 111 - shall be admissible and shall constitute prima facie evidence of the location and boun daries of those areas. This section shall not be construed as precluding the prosecution clement of thc offcnsc. This scction shall not be construcd as precluding the use or admissibility of any map or diagram if such map or diagram is otherwise admissible. F. As used in this section the following terms have the meanings indicated 1. "School" has thc m ning undcr RCW 28A.150.010 or 28A.150.020. Tho CC:\Legislative Development\Adoption of Blake Fix 8-11-23 Kari Sand Review by Andy Youn Page 4 of 6 2. "Public park" m ns land, including any facilitics or improvements on the land, that is operatcd as a park by the State or local government. 3. "Community center" means the City of Tukwila Community Center located at 12424 42nd Avenue South. 4. "Library" means a free public library supported in whole or in part with money derived from taxation. G. As described in this section, the following areas are designated as drug free zones, subject to the provisions of this section: 1. Schools (includes 1,000 foot buffer zone): a Foster High School 1212 S. 111th la Showalter Middle School 1628 S. 111th 6 Tukwila -Elementary 5939 S. 149 -St d Cascade View Elementary 13601 32"t Ave. S. e Thorndyke Elementary 1115 S. 15Q -St f Aviation High School •.: _. g Acadcmy Schools/ Children's Academy 14601 Interurban Ave. S. h 2. Parks: a Duwamish Park 42nd Ave. S./S. 116th St. la Codiga Park 12535 50th PI. S. e Riverton Mini Park 15th Ave. S./S. 133rd St. 8 57th Avenue Park 57th Ave. S./S. 133rd St. e Hazelnut Park 59th Ave. S./S. 117th St. f Fort Dent Park Southcenter Blvd./Interurban Ave. S. g Tukwila -Park 65th Ave. S./S. 153rd St. h lkaw Dork 6200 Southcenter Blvd. i Bicentennial Park Christensen Rd./Strander Blvd. } Duwamish/Green River Trail Part trail of valley river system along ... - - k Interurban Trail S. 180th to north City limits t Crestview Park 42nd Ave. S./S. 162nd St. al Crystal Springs Park 51st Ave. S./S. 158th St. n Joseph Foster Memorial Park 53rd Ave. S./S. 137th St. a Southgate Park 10th Ave. S./S. 133rd St. ia Community Center Park 42nd Ave. S./S. 121th ct Riverton Park 1101 S. 131st St. f Tukwila Pond Park S. 168th/Strander Blvd. s Designated park trails t _ _ _ _ _ - _ _ • • _ 37th Ave S. & S. 142nd St. a Duwamish Hill Prescrvo 3800 S. 115th St. Macadam Wetlands Park S. 111th St./Macadam Rd. w Cecil Moses Park 11013 W. Marginal PI. 3. Community Centers: a Tukwila Community Center 12121 12nd Ave. S. 14475 59th Ave. S. Center 4. Librarics: a Foster Library 1060 S. 111th Library Connection @ Southcenter 1115 Southcenter Mall CC:\Legislative Development\Adoption of Blake Fix 8-11-23 Kari Sand Review by Andy Youn Page 5 of 6 33 Section 5. Section Reenacted. TMC Section 8.07.020 is hereby reenacted to read as follows: 8.07.020 Crimes and penalties not specifically referenced. Any act or omission defined as a misdemeanor or gross misdemeanor in State law and not specifically identified in this chapter is also adopted by reference, as now enacted or hereafter amended. Any penalty in Article IV of chapter 69.50 RCW for a non -felony violation not specifically identified in this chapter is also adopted by reference, as now enacted or hereafter amended. Section 6. Corrections by City Clerk or Code Reviser Authorized. Upon approval of the City Attorney, the City Clerk and the code reviser are authorized to make necessary corrections to this ordinance, including the correction of scrivener's errors; references to other local, state, or federal laws, codes, rules, or regulations; or ordinance numbering and section/subsection numbering. Section 7. Severability. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance or its application to any person or situation should be held to be invalid or unconstitutional for any reason by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this ordinance or its application to any other person or situation. Section 8. Declaration of Emergency; Effective Date. Pursuant to RCW 35A.12.130, this ordinance shall take effect and be in full force immediately as a public emergency ordinance necessary for the protection of public health, public safety, and the public peace, if approved by a majority plus one of the whole membership of the Council. A non -exhaustive list of facts supporting this emergency declaration are included in the recitals above, which are adopted by reference as findings of fact as if fully set forth herein. This ordinance or a summary thereof consisting of the title shall be published in the official newspaper of the City. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Special Meeting thereof this day of , 2023. ATTEST/AUTHENTICATED: Christy O'Flaherty, MMC, City Clerk Allan Ekberg, Mayor APPROVED AS TO FORM BY: Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Office of the City Attorney CC:\Legislative Development\Adoption of Blake Fix 8-11-23 Kari Sand Review by Andy Youn 34 Ordinance Number: Page 6 of 6