WORK SESSION ITEM City Council

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1 DATE: 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 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.

2 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.

3 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)

4 LEGAL REVIEW PENDING 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 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. Pending/strict liability parent to minors ORD

5 LEGAL REVIEW PENDING Marijuana shall have the same definition as in Section 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 liquorlicensed 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 which reads in its entirety as follows: Sec 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 twentyone (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 Pending/strict liability parent to minors ORD

6 LEGAL REVIEW PENDING 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 ATTEST: Mayor City Clerk Passed and adopted on final reading on this day of, A.D ATTEST: Mayor City Clerk Pending/strict liability parent to minors ORD

7 LEGAL REVIEW PENDING 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 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 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 which reads in its entirety as follows: Sec 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 Pending/minor in possession of alcohol ORD

8 LEGAL REVIEW PENDING (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 (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 postsecondary school. Such student shall have been enrolled in a university or a postsecondary 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; Pending/minor in possession of alcohol ORD

9 LEGAL REVIEW PENDING (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., (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 courtordered 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 ATTEST: Mayor Pending/minor in possession of alcohol ORD

10 LEGAL REVIEW PENDING City Clerk Passed and adopted on final reading on this day of, A.D ATTEST: Mayor City Clerk Pending/minor in possession of alcohol ORD

11 Social Host and Underage Consumption- Possession Ordinances City Council Work Session April 28, 2015 Laurie Kadrich, CDNS Director

12 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

13 Social Host Ordinance Intended to Prevent Underage Drinking Holds owner and/or host responsible Mirrors local Public Nuisance Ordinance notice requirements 3

14 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

15 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

16 Community Concerns Team Fort Collins Colorado State University Property Owners; including parents 6

17 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