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HomeMy WebLinkAboutCP 72 lETV ME U VMU MMMOUMM 11 POLICY PROPOSAL DATE FILE NUMBER SUBJECT PAGE 1 OF 7/22/80 CP-72 Drung P PROPOSAL PROPOSED BY: Mayor CITY-/AANAGER'' VIEW WooRichard Newkirk, Mayor Pro Tem Background The City of Fort Worth has several business establishments which sell paraphernalia that can be used to introduce into the human body controlled substances which are unlawful to possess, manufacture, distribute or deliver under State law. For some time now, there have been growing complaints from residents in Fort Worth and throughout the nation and requests that the sale of drug paraphernalia be regulated. The Drug Enforcement Administration of the Department of Justice has drafted a model statute for use by states in the regulation of this activity. State statutes and ordi- nances passed by other cities and states which were based on this model have had a successful record in the courts because it focuses on both certain prohibited items and certain parameters to determine intent to use such items with illicit drugs. j` Proposal Attached is an ordinance which will regulate the possession and distribution of drug paraphernalia. The ordinance specifically defines "drug paraphernalia", and also permits the trier of facts to look at certain factors in determining whether the user, possessor, deliverer or manufacturer of drug paraphernalia intends to use, possess, deliver or manufacture such for the purpose of introducing a controlled substance into the human body. The model act is a proposed state statute that imposes very stiff fines and prison sentences for penalties. The proposed ordinance has been written to reflect our Jurisdictional limits in Municipal Court, i.e., $200 fine. It is suggested that this ordinance be passed by the City Council and that the City support the preparation and introduction of a bill in the 67th Texas Legislature that regulates drug paraphernalia. Recommendation It is recommended: 1. That the City Council adopt the attached ordinance regulating drug paraphernalia; and 2. That the City staff assist in the preparation and passage of a State statute regulating drug paraphernalia. LEGALITY FISCAL NOTE 13 CITY MANAGER'S COMMENTS s POLICY PROPOSAL (cont'd) PAGE!—OF Legality The proposed ordinance was drafted by the Department of Law from the model statute and is approved as to form and legality. Fiscal Impact There is no fiscal impact. City Manager's Comments The City Manager's Office supports the proposed ordinance. Woodie Woods, Mayor Richard -C. Newkirk, Mayor Pro Tem APPROVED BY CITY COUNCIL JUL 22 1980 ci. ;:,t ec�etary of tha C o! ort fdortd, Tax�R CITY OF FORT WORTH ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 27, "OFFENSES - MISCELLANEOUS", OF THE CODE OF THE CITY OF FORT WORTH, TEXAS (1964) , AS AMENDED BY ADDING SEC. 27-53 PROVIDING FOR THE REGULATION OF DRUG PARAPHERNALIA; PROVIDING FOR DEFINITIONS; PROVIDING FOR THE IDEN- TIFICATION OF DRUG PARAPHERNALIA; PROVIDING FOR OFFENSES; PROVIDING FOR CIVIL FORFEITURE; PROVIDING THAT THE ORDINANCE WILL BE CUMULATIVE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A PENALTY; PROVIDING FOR PUBLICATION AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS: SECTION I. That Chapter 27 of the Code of the City of Fort Worth, Texas (1964) , "Offenses - Miscellaneous", be amended by adding Section 27-53, such section to read as follows: "Sec. 27-53. Drug Paraphernalia (a) The term 'Drug Paraphernalia' means all equipment, products and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvest- ing, manufacturing, compounding, converting, produc- ing, processing, preparing, testing, analyzing, packag- ing, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise intro- ducing into the human body a controlled substance in violation of this section. It includes, but is not limited to: (1) Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled sub- stance can be derived; (2) Kits used, intended for use, or designed for use in manufacturing, com- pounding, converting, producing, processing, or preparing controlled substances; (3) Isomerization devices used, in- tended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance; (4) Testing equipment used, intended for use, or designed for use in identify- ing, or in analyzing the strength, effec- tiveness or purity of controlled substances; (5) Scales and balances used, intended for' use, or designed for use in weighing or measuring controlled substances; (6) Diluents and adulterants such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use, or designed for use in cutting con- trolled substances; (7) Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in other- wise cleaning or refining, marijuana; (S) Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding con- trolled substances; (9) Capsules, balloons, envelopes and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances; (10) Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances; (11) Hypodermic syringes, needles and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body; (12) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as: (a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls; (b) Water pipes; (c) Carburetion tubes and devices; (d) Smoking and carburetion masks; (e) Roach clips: meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand; (f) Miniature cocaine spoons, and cocaine vials; (g) Chamber pipes; (h) Carburetor pipes; (i) Electric pipes; (j) Air-driven pipes; (k) Chilams; (1) Bongs; (m) Ice pipes or chillers; (b) In determining whether an object is Drug paraphernalia, a court or other authority should con- sider, in addition to all other logically relevant factors, the following: (1) Statements by an owner or by anyone in control of the object concerning its use; 2 - I (2) Prior convictions, if any, of an owner, or of anyone in control of the object, under any State or Federal law relating to any con- trolled substance; (3) The proximity of the object, in time and space, to a direct violation of this sec- tion; (4) The proximity of the object to con- trolled substances; (5) The existence of any residue of con- trolled substances on the object; (6) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this section; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this section shall not prevent a finding that the object is intended for use, or designed for use as Drug parapher- nalia; (7) Instructions, oral or written, pro- vided with the object concerning its use; (8) Descriptive materials accompanying the object which explain or depict its use; (9) National and local advertising con- cerning its use; (10) The manner in which the object is displayed for sale; (11) Whether the owner, or anyone in con- trol of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products; (12) Direct or circumstantial evidence of the ratio of sales of the object(s) to the total sales of the business enterprise; (13) The existence and scope of legitimate uses for the object in the community; (14) Expert testimony concerning its use. (c) It is unlawful for any person to use, or possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manu- facture, compound, convert, produce, process, pre- pare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this section. (d) It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ` ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of - 3 - r this section. (e) Controlled substance as used in this sec- tion refers to those substances defined by the 'Texas Controlled Substances Act', Vernon's Ann. Civ. St. Art. 4476-15. (f) Any person 18 years of age or over who violates (d) by delivering drug paraphernalia to a person under 18 years of age who is at least 3 years his junior is guilty of an offense. (g) It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia. (h) Any drug paraphernalia, as defined in this section shall be subject to seizure and civil forfeiture by law enforcement authorities acting under either a valid warrant or pursuant to a violation observed by the seizing officer. Such actions shall be subject to the procedures used in the Controlled Substances Act of the State of Texas." SECTION II. That this ordinance shall be cumulative of all provisions of ordinances and of the Code of the City of Fort North, Texas (1964) as amended, except where the provisions of this ordinance are in direct conflict with the provisions of such ordinances and such Code, in which event conflicting provisions of such ordinances and such Code are hereby repealed. SECTION III. It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses and phrases of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any Court of competent jurisdiction, such unconstitution- ality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance since the same would have been enacted by the City Council without the incorporation of this ordinance of any such unconstitu- tional phrase, clause, sentence, paragraph or section. - 4 - SECTION IV. That any person, firm or corporation who violates, dis- obeys, omits, neglects or refuses to comply with or who resists the enforcement of any of the provisions of this ordinance shall be fined not more than Two Hundred and No/100 Dollars ($200.00) for each offense. Each day that a violation is permitted to exist shall constitute a separate offense. SECTION V. The City Secretary of the City of Fort Worth, Texas, is hereby directed to publish the caption and penalty clause and effective date of this ordinance for five (5) days in the official newspaper of the City of Fort Worth, Texas, as authorized by the TEX.REV.CIV.STATS. art. 1176b-1. SECTION VI. This ordinance shall be in full force and effect from and after the date of passage and publication as above specified. APPROVED AS TO FORM AND LEGALITY: 77 City Attorney 000` ADOPTED: EFFECTIVE: ,0M. Z