HomeMy WebLinkAbout2023-028 Ordinance amending City of Yakima Municipal Code Chapter 6.08 Drug Related Offenses to adopt provisions of SB 5536 ("Blake Fix") which regulates possession of counterfeit, controlled, and legend drugs, drug paraphernalia, and drug use in public, ORDINANCE NO. 2023-028
AN ORDINANCE concerning Title 6, Public Safety and Morals; amending the City of
Yakima Municipal Code Chapter 6.08 Drug Related Offenses to adopt
provisions of SB 5536 ("Blake Fix") which regulates possession of
counterfeit, controlled, and legend drugs, drug paraphernalia, and drug
use in public, repealing YMC 6.08.060 (Loitering for purposes for drug
activity), and RCW 69.50.425, RCW 69.41.070, YMC 6.08.030,
YMC 6.08.210, and YMC 6.08.300 as housekeeping measures.
WHEREAS, In State v. Blake, 197 Wn.2d 170 (2021), the Washington State Supreme
Court found former RCW 69.50.4013 which made it a strict liability offense to possess a
controlled substance in violation of the Uniform Controlled Substance Act, unconstitutional
because the statute did not require proof that the offender knowingly possessed a controlled
substance; and
WHEREAS, the Legislature adopted RCW 69.50.4013 during the 2021 legislative
session, which provided a temporary correction to the law. However, before an arrest could be
made, the 2021 legislation required officers to inform individuals on their first two violations that
they could voluntarily enter treatment, but the legislation created no incentive for an offender to
choose treatment. The 2021 legislation will sunset on July 1, 2023; and
WHEREAS, the 2023 "Blake Fix", SB 5536, prohibits the unlawful possession of
counterfeit, controlled, and legend substances, and drug paraphernalia, prohibits public use of
counterfeit, controlled, and legend drugs, and encourages the use of pretrial diversion programs
to allow defendants to meaningfully engage in treatment programs; and
WHEREAS, Governor Inslee signed SB 5536 (Blake Fix) into law and portions of the law
take affect on July 1, 2023; and
WHEREAS, SB 5536 preempts local regulation and repeals local laws and ordinances
that are inconsistent with the of state law; and
WHEREAS, the Yakima City Council believes it is in the best interest of the citizens of
the City of Yakima to adopt provisions of SB 5536 and allow local jurisdiction matters to be
prosecuted in the Municipal Court; now, therefore,
BE IT ORDAINED BY THE CITY OF YAKIMA:
Section 1. Chapter 6.08 is hereby amended to read as follows:
Chapter 6.08
DRUG-RELATED OFFENSES
Sections:
6.08.015 Statutes adopted.
6.08.040 Severability.
6.08.015 Statutes adopted.
1
The following Revised Code of Washington (RCW) sections, as currently enacted or as
hereafter amended or recodified from time to time, are hereby adopted by reference and shall
be given the same force and effect as if set forth herein in full:
RCW
69.41.010 Definitions - Legend Drugs
69.41.030 Possession of Legend Drugs without Prescription or Order
9.47A.010 Definition.
9.47A.020 Unlawful inhalation—Exception.
9.47A.030 Possession of certain substances prohibited, when.
9.47A.040 Sale of certain substances prohibited, when.
9.47A.050 Penalty.
69.50.101 Definitions.
69.50.102 Definitions—Drug paraphernalia.
69.50.4011 Counterfeit Substances— Penalty.
69.50.4013 Possession of Controlled Substances— Penalty— Possession of usable Cannabis,
Cannabis Concentrate, or Cannabis Infused Product - Delivery
69.50.4014 Possession of forty grams or less of marijuana—Penalty.
69.50.412 Prohibited acts.
69.50.4121 Drug paraphernalia—Selling or giving—Penalty.
69.50.445 Opening package of or consuming marijuana, useable marijuana, or marijuana-
infused product in view of general public—Penalty.
69.51A.060 Use or Display of Medical Marijuana
(Ord. 2015-021 § 23, 2015: Ord. 2012-50 § 2, 2012).
6.08.040 Severability.
If any provision of this chapter or the application thereof to any person or circumstances is held
invalid, the invalidity does not affect other provisions or applications of this chapter which can be
given effect within the invalid provision or application, and to this end the provisions of this
chapter are severable. (Ord. 2477 § 1 (part), 1980).
Section 2. This ordinance shall be in full force and effect 30 days after its passage,
approval, and publication as provided by law and by the City Charter.
PASSED BY THE CITY COUNCIL, signed and approved this 20th day of June, 2023.
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ATTEST: yPKt"^q �ho,x '4 G Janice Deceit), Mayor
, 1 G oci ,-...._, i I , SUS-L 1
Rosalinda Ibarra, City /i;�1 k t tN,_. o ,„,
Publication Date: June 23, 2023
Effective Date: July 23, 2023
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 12.
For Meeting of: June 20, 2023
ITEM TITLE: Ordinance amending City of Yakima Municipal Code Chapter 6.08
Drug Related Offenses to adopt provisions of SB 5536 ("Blake
Fix")which regulates possession of counterfeit, controlled, and
legend drugs, drug paraphernalia, and drug use in public, repealing
YMC 6.08.060 and RCW 69.50.425, RCW 69.41.070, YMC
6.08.030, YMC 6.08.210, and YMC 6.08.300 as housekeeping
measures.
SUBMITTED BY: Cynthia Martinez, Senior Assistant City Attorney
SUMMARY EXPLANATION:
The "Blake Fix," passed the Washington State Legislature and was signed by Governor Jay
I nslee on May 16, 2023, with the provisions relating to use and possession of drugs taking effect
on July 1, 2023.
Cities must adopt or incorporate state statutes into their municipal code in order to prosecute
misdemeanor or gross misdemeanor cases in city municipal court— See City of Auburn
v. Gaunt, 174 Wn.2d 321, 274 P.3d 1033 (2012), which held that cities with a municipal court
created under chapter 3.50 RCW must prosecute misdemeanors and gross misdemeanors
based on city code provisions or RCWs that have been incorporated into the code by reference.
The proposed ordinance adopts gross misdemeanor, misdemeanor, and civil infractions included
in SB 5536, which our Municipal Court will have jurisdiction over if adopted by council: These
include the following acts:
• Knowing Possession of counterfeit and or controlled substances
• Knowing use of prohibited substances in a public place
• Knowing Possession of legend drugs without a prescription
• Possession of drug paraphernalia
The ordinance also repeals those statutes no longer in affect and the provisions regulating loitering for
purposes of drug activity, which is preempted and inconsistent with HB 5536, and includes other
housekeeping measures.
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If Council wants the crimes listed above to be enforced in the City of Yakima, the
recommendation is that the violations be prosecuted within the City of Yakima criminal justice
system. City prosecutors and the Municipal Court are focused on local issues affecting the
quality of life in our community. Filing these cases into the Yakima County District Court(the court
with jurisdiction for misdemeanors in the County system)will mean additional jail and probation
costs, and court filing fees. More importantly, the City would lose the ability to control these costs
over time. Due to lack of data, it is difficult to get a quote for these services.
The City Prosecution division has a charging unit and a Community Diversion Program. The
charging unit screens cases before filing, avoiding costs on nonviable cases. The Diversion
program will be retooled to handle"Blake" diversions which are encouraged in the legislation. The
Municipal Court is seeking to have a more active role in the Community Diversion program which
will only strengthen the program. In contrast, the Yakima County criminal justice system does not
have these resources at the District Court level.
The increased caseload, as a result of drug prosecutions may result in additional jail, defense,
prosecution, and court costs. This will depend on the number of stand-alone cases (cases which
do not arise with other crimes). Cases that arise with other crimes will not count as an additional
case for defense caseload counts. With the exception of the defense workload, the city criminal
justice system is poised to absorb the increased cases. Once there is data on the impact,
Council can choose to revisit this decision.
ITEM BUDGETED: No
STRATEGIC PRIORITY: Public Safety
APPROVED FOR SUBMITTAL BY THE CITY MANAGER
RECOMMENDATION:
Pass ordinance.
ATTACHMENTS:
Description Upload Date Type
❑ Ord-YMC 6.08 redline 6/8/2023 Ordinance
D Ord-YMC 6.08 Final 6/8/2023 Ordinance
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ORDINANCE NO. 2023-
AN ORDINANCE concerning Title 6, Public Safety and Morals; amending the City of
Yakima Municipal Code Chapter 6.08 Drug Related Offenses to adopt
provisions of SB 5536 ("Blake Fix") which regulates possession of
counterfeit, controlled, and legend drugs, drug paraphernalia, and drug
use in public, repealing YMC 6.08.060 (Loitering for purposes for drug
activity), and RCW 69.50.425, RCW 69.41.070, YMC 6.08.030, YMC
6.08.210, and YMC 6.08.300 as housekeeping measures.
WHEREAS, In State v. Blake, 197 Wn.2d 170 (2021), the Washington State Supreme
Court found former RCW 69.50.4013 which made it a strict liability offense to possess a
controlled substance in violation of the Uniform Controlled Substance Act, unconstitutional
because the statute did riot require proof that the offender knowingly possessed a controlled
substance; and
WHEREAS, the Legislature adopted RCW 69.50.4013 during the 2021 legislative
session, which provided a temporary correction to the law. However, before an arrest could be
made, the 2021 legislation required officers to inform individuals on their first two violations that
they could voluntarily enter treatment, but the legislation created no incentive for an offender to
choose treatment. The 2021 legislation will sunset on July 1, 2023; and
WHEREAS, the 2023"Blake Fix", SB 5536, prohibits the unlawful possession of
counterfeit, controlled, and legend substances, and drug paraphernalia, prohibits public use of
counterfeit, controlled, and legend drugs, and encourages the use of pretrial diversion
programs to allow defendants to meaningfully engage in treatment programs; and
WHEREAS, Governor Inslee signed SB 5536 (Blake Fix) into law and portions of the law
take affect on July 1, 2023; and
WHEREAS, SB 5536 preempts local regulation and repeals local laws and ordinances
that are inconsistent with the of state law; and
WHEREAS, the Yakima City Council believes it is in the best interest of the citizens of
the City of Yakima to adopt provisions of SB 5536 and allow local jurisdiction matters to be
prosecuted in the Municipal Court; now, therefore,
BE IT ORDAINED BY THE CITY OF YAKIMA:
Section 1. Chapter 6.08 is hereby amended to read as follows;
Chapter 6.08
DRUG-RELATED OFFENSES
Sections:
6.08.015 Statutes adopted.
6.08.030 Seizure and forfeiture.
6.08.040 Severability.
6.08.060 Loiter for the purpo.c of engaging in drug related activity.
6.08.210 Use or display of medical marijuana.
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6.08.300 Possession of legend drug without prescription or order prohibited
Exception and penalties.
6.08.015 Statutes adopted.
The following Revised Code of Washington (RCW) sections, as currently enacted or as
hereafter amended or recodified from time to time, are hereby adopted by reference and shall
be given the same force and effect as if set forth herein in full:
RCW
69.41.010 Definitions - Legend Drugs
69.41.030 Possession of Legend Drugs without Prescription or Order
9.47A.010 Definition.
9.47A.020 Unlawful inhalation—Exception.
9.47A.030 Possession of certain substances prohibited, when.
9.47A.040 Sale of certain substances prohibited, when.
9.47A.050 Penalty.
69.50.101 Definitions.
69.50.102 Definitions—Drug paraphernalia.
69.50.4011 Counterfeit Substances - Penalty.
69.50.4013 Possession of Controlled Substances - Penalty- Possession of usable Cannabis,
Cannabis Concentrate, or Cannabis Infused Product - Delivery
69.50.4014 Possession of forty grams or less of marijuana—Penalty.
69.50.412 Prohibited acts.
69.50.4121 Drug paraphernalia—Selling or giving—Penalty.
69.50.425 Misdomoanor violations Minimum ponalty.
69.50.445 Opening package of or consuming marijuana, useable marijuana, or marijuana-
infused product in view of general public—Penalty.
69.51A.060 Use or Display of Medical Mariivana
(Ord. 2015-021 § 23, 2015: Ord. 2012-50 § 2, 2012).
C 08 030 Seizure and forfeiture
A. Property Subject to Seizure and Forfeiture. All drug paraphernalia as defined by
RCW 69.50.102 is subject to seizure and forfeiture to the city of Yakima.
B. Procedure for Seizure and Forfeiture.
(1) Drug paraphernalia may be seized and held as evidence in connection with an arrest
for a violation of any RFGATs,. this-chapter, a eited to the-city-o therwise
disposed of as may be ordered by the court.
{2) The Yakima County district court or other court of competent jurisdiction may issue a
warrant for the seizure of drug paraphernalia. Drug paraphernalia seized pursuant to a
warrant is subject to forfeiture by court order.
(3) Any peace officer having probable cause to believe that property constitutes drug
paraphernalia, so as to be subject to seizure and forfeiture, may seize the property,
provided that court proceedings for the forfeiture thereof shall be commenced no later
than five days after the initial seizure.
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C. Abandoned or Lost Drug Paraphernalia. Drug paraphernalia in the possession of the city
which is abandonod or lost, or for whom tho ownor cannot bo dotorminod, shall bo disposod of
in the same manner as other contraband property.
Bole property of the city of Yakima. (Ord. 2/177 § 1 (part), 1980).
6.08.040 Severability.
If any provision of this chapter or the application thereof to any person or circumstances is held
invalid, the invalidity does not affect other provisions or applications of this chapter which can
be given effect within the invalid provision or application, and to this end the provisions of this
chapter are severable. (Ord. 2477 § 1 (part), 1980).
6.08.060 Loiter for the purpose of engaging in drug related activity.
or near any public or private place in a manner and under circumstances manifesting the
purpose to engage in drug-related activity contrary to any of the provisions of
Chapters 69.'11, 69.50 or 69.52 of the Revised Code of Washington.
B. No arrost shall bo mado for a violation of this soction unloss tho arrosting officor first
affords such person an opportunity to explain such conduct, and no person shall be convicted
lawful purpose.
C. Included among the circumstances which may be considered in determining whether such
purpose is manifested, but not limited thereto, arc:
1. Such person is a known, unlawful drug user, possessor, or seller;
2. It is known that such person has been convicted in any court within this state within a
period of two years of any violation involving the use, possession or sale of any of the
substances referred to in Chapters 69.41, 69.50 and 69.52 of the Revised Code of
Washington, or, within two years, such person has been convicted of any violation of any
of the provisions of said chapters of the Revised Code of Washington;
3. The area involved is by public repute known to be an area of unlawful drug use and
trafficking;
1. The premises involved arc known to have been reported to law enforcement as a
place suspected of drug activity pursuant to Chapter 69.52 of the Revised Code of
Washington;
5. Any vehicle involved is known to be registered to a known unlawful drug user,
drug related activity;
6. Such person behaves in such a manner as to raise a reasonable suspicion that he or
she is about to engage in or is then engaged in an unlawful drug related activity;
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7. Such person takes flight upon the appearance of a police officer;
8. Such porson manifostly ondoavors to concoal himsolf or horsolf or any objoct that
reasonably could be involved in an unlawful drug related activity;
9. Such person refuses to identify himself or herself upon the request of an identified
police officer.
D. Loitoring for tho purpose of ongaging in drug rolatod activity is a misdomoanor. (Ord. 98 3
§ 11, 1998: Ord. 94 22 § 24, 1994: Ord. 3097 § 1, 1988).
6.08.210 Use or display of medical marijuana.
RCW 69.51A.060(1) as currently enacted or as hereafter amended or recodified from time to
time is hereby adopted by reference. (Ord. 201133 § 1, 2011).
6.08.300 Possession of legend drug without prescription or order prohibited Exception
and penalties.
RCW 69.41.030 and 69.41.070 arc hereby adopted by reference. (Ord. 2003 44 § 1, 2003).
Section 2. This ordinance shall be in full force and effect 30 days after its passage,
approval, and publication as provided by law and by the City Charter.
PASSED BY THE CITY COUNCIL, signed and approved this 20th day of June, 2023.
Janice Deccio, Mayor
ATTEST:
Rosalinda Ibarra, City Clerk
Publication Date:
Effective Date:
4
7
ORDINANCE NO. 2023-
AN ORDINANCE concerning Title 6, Public Safety and Morals; amending the City of
Yakima Municipal Code Chapter 6.08 Drug Related Offenses to adopt
provisions of SB 5536 ("Blake Fix") which regulates possession of
counterfeit, controlled, and legend drugs, drug paraphernalia, and drug
use in public, repealing YMC 6.08.060 (Loitering for purposes for drug
activity), and RCW 69.50.425, RCW 69.41.070, YMC 6.08.030,
YMC 6.08.210, and YMC 6.08.300 as housekeeping measures.
WHEREAS, In State v. Blake, 197 Wn.2d 170 (2021), the Washington State Supreme
Court found former RCW 69.50.4013 which made it a strict liability offense to possess a
controlled substance in violation of the Uniform Controlled Substance Act, unconstitutional
because the statute did riot require proof that the offender knowingly possessed a controlled
substance; and
WHEREAS, the Legislature adopted RCW 69.50.4013 during the 2021 legislative
session, which provided a temporary correction to the law. However, before an arrest could be
made, the 2021 legislation required officers to inform individuals on their first two violations that
they could voluntarily enter treatment, but the legislation created no incentive for an offender to
choose treatment. The 2021 legislation will sunset on July 1, 2023; and
WHEREAS, the 2023"Blake Fix", SB 5536, prohibits the unlawful possession of
counterfeit, controlled, and legend substances, and drug paraphernalia, prohibits public use of
counterfeit, controlled, and legend drugs, and encourages the use of pretrial diversion
programs to allow defendants to meaningfully engage in treatment programs; and
WHEREAS, Governor Inslee signed SB 5536 (Blake Fix) into law and portions of the law
take affect on July 1, 2023; and
WHEREAS, SB 5536 preempts local regulation and repeals local laws and ordinances
that are inconsistent with the of state law; and
WHEREAS, the Yakima City Council believes it is in the best interest of the citizens of
the City of Yakima to adopt provisions of SB 5536 and allow local jurisdiction matters to be
prosecuted in the Municipal Court; now, therefore,
BE IT ORDAINED BY THE CITY OF YAKIMA:
Section 1. Chapter 6.08 is hereby amended to read as follows:
Chapter 6.08
DRUG-RELATED OFFENSES
Sections:
6.08.015 Statutes adopted.
6.08.040 Severability.
6.08.015 Statutes adopted.
1
8
The following Revised Code of Washington (RCW) sections, as currently enacted or as
hereafter amended or recodified from time to time, are hereby adopted by reference and shall
be given the same force and effect as if set forth herein in full:
RCW
69.41.010 Definitions - Legend Drugs
69.41.030 Possession of Legend Drugs without Prescription or Order
9.47A.010 Definition.
9.47A.020 Unlawful inhalation—Exception.
9.47A.030 Possession of certain substances prohibited, when.
9.47A.040 Sale of certain substances prohibited, when.
9.47A.050 Penalty.
69.50.101 Definitions.
69.50.102 Definitions—Drug paraphernalia.
69.50.4011 Counterfeit Substances— Penalty.
69.50.4013 Possession of Controlled Substances — Penalty— Possession of usable Cannabis,
Cannabis Concentrate, or Cannabis Infused Product - Delivery
69.50.4014 Possession of forty grams or less of marijuana—Penalty.
69.50.412 Prohibited acts.
69.50.4121 Drug paraphernalia—Selling or giving—Penalty.
69.50.445 Opening package of or consuming marijuana, useable marijuana, or marijuana-
infused product in view of general public—Penalty.
69.51A.060 Use or Display of Medical Marijuana
(Ord. 2015-021 § 23, 2015: Ord. 2012-50 § 2, 2012).
6.08.040 Severability.
If any provision of this chapter or the application thereof to any person or circumstances is held
invalid, the invalidity does not affect other provisions or applications of this chapter which can
be given effect within the invalid provision or application, and to this end the provisions of this
chapter are severable. (Ord. 2477 § 1 (part), 1980).
Section 2. This ordinance shall be in full force and effect 30 days after its passage,
approval, and publication as provided by law and by the City Charter.
PASSED BY THE CITY COUNCIL, signed and approved this 20th day of June, 2023.
Janice Deccio, Mayor
ATTEST:
Rosalinda Ibarra, City Clerk
Publication Date:
Effective Date:
2