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HomeMy WebLinkAboutOrd 2710 - TMC Chapter 8.07 Regarding Drug Possession Amendments (Reference Blake Decision)Washington Ordinance N©. 2' 1 d 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 8-21-23 Kari Sand Review by Andy Youn Page 1 of 4 WHEREAS, ESB 5476 contained a sunset clause whereupon the bill's provisions would expire on July 1, 2023, unless the Washington State Legislature took fu rtheraction; 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 can 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 illicitdrug 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 enactnnentof 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 as to non -felonies: CC:legislative Development\Adoption of Blake Fix 8-21-23 Kari Sand Review by Andy Youn Page 2 of 4 RCW 69.41.030 Sale, delivery, or possession of legend drug without prescription or order prohibited— Exceptions—Penalty. RCW 69.50.101 Definitions. RCW 69.50.102 Drug Paraphernalia–Definitions. RCW 69.50.309 Containers. RCW 69.50.4011 Counterfeit substances – Penalties. RCW 69.50.4013 Possession of controlled substance – Penalty– Possession of useable cannabis, cannabis concentrates, or cannabis -infused products – Delivery. RCW 69.50.4014 Possession of Forty Grams or Less of Marijuana–Penalty. RCW 69.50.4016 Provisions not applicable to offenses under RCW 69.50.410. RCW 69.50.412 Prohibited Acts: E–Penalties. RCW 69.50.4121 Drug paraphernalia – Selling or giving – Penalty. RCW 69.50.420 Violations – Juvenile driving privileges. RCW 69.50.435 Violations committed in or on certain public places or facilities – Additional penalty – Defenses – Construction – Definitions. RCW 69.50.505 Seizure and Forfeiture. RCW 69.50.506 Burden of Proof. RCW 69.50.509 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. 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. 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. Anyact or omission defined as a misdemeanor or gross misdemeanor in State law and not specifically identified in th is chapteris 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. CC:\Legislative Development\Adoption of Blake Fix 8-21-23 Kari Sand Review by Andy Youn Page 3 of 4 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 2-Ck day of )1AW- , 2023. ATTEST/AUTHENTICATED: Christy O'Flaherty, MMC City Clerk APPROVED AS TO FORM BY: Office of the ity Attorney CC:\Legislative Development\Adoption of Blake Fix 8-21-23 Kari Sand Review by Andy Youn Cy e os rinos Johnson yor Pro Tempore Filed with the City Clerk: `a-22-25 Passed by the City Council: 8 - it -23 Published: 3 -238. - Effective Date: 'y SeGiiort Ordinance Number: 2ItL Page 4 of 4 City of Tukwila Public Notice of Ordinance Adoption for Ordinances 2708-2710. On August 28, 2023 the City Council of the City of Tukwila, Washington, adopted the following ordinances, the main points of which are summarized by title as follows: Ordinance 2708: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, AMENDING ORDINANCE NO. 2571 TO UPDATE THE FIRE IMPACT FEE SCHEDULE, AS CODIFIED IN TUKWILA MUNICIPAL CODE CHAPTER 16.26 AS FIGURE 16-1, "FEE SCHEDULE"; REPEALING ORDINANCE NO. 2694; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. Ordinance 2709: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, AMENDING ORDINANCE NO. 2572 TO UPDATE THE PARKS IMPACT FEE SCHEDULE AS CODIFIED IN TUKWILA MUNICIPAL CODE CHAPTER 16.28 AS FIGURE 16-1, "FEE SCHEDULE"; REPEALING ORDINANCE NO. 2695; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. Ordinance 2710: 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. The full text of this ordinance will be provided upon request. Christy O'Flaherty, MMC, City Clerk Published Seattle Times: August 31, 2023