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Home My WebLink About6825 ORDINANCE NO. 6825 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, RELATING TO CONTROLLED SUBSTANCES AND REPEALING CHAPTER 9.22 OF THE AUBURN CITY CODE AND AMENDING ACC 9.24.010 TO CONFORM WITH ESB 5476 WHEREAS, on February 25, 2021, the Washington Supreme Court issued its opinion in State v. Blake (197 Wn.2d 170). The Blake decision held RCW 69.50.4013 (the State's felony drug possession law) unconstitutional because the RCW lacked the legal element of"knowing" possession; WHEREAS, the State Legislature responded to Blake by passing ESB 5476, signed into law by Governor Inslee on May 14, 2021. ESB 5476 includes the following changes to State drug laws: • Section 9 of ESB 5476 adds the required "knowing" element to RCW 69.50.4013, and reduces the RCW from a felony to a misdemeanor; • Section 14 of ESB 5476 decriminalizes the use or delivery of personal use drug paraphernalia in RCW 69.50.412; WHEREAS, these law changes allow the City to now prosecute State law drug possession as a misdemeanor, but also render the City's drug possession and paraphernalia ordinances in ACC 9.22 obsolete and inconsistent with State law as revised by ESB 5476; WHEREAS, State law requires City ordinances to be consistent with State laws. Given the passage of ESB 5476 and its legal changes,the ordinances in ACC 9.22 should be repealed; Ordinance No. 6825 June 17, 2021 Page 1 of 3 WHEREAS, ACC 9.24.010 should also be amended in light of ESB 5476 to remove its references to ACC 9.22 and to add precision and clarity to the other parts of that section. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN as follows: Section 1. Repeal of chapter within the Auburn City Code. Auburn City Code Chapter 9.22 and the following sections and underlying ordinance language within it are hereby repealed: ACC 9.22.010 Controlled substances prohibited ACC 9.22.020 Drug paraphernalia prohibited ACC 9.22.900 Statutes incorporated by reference Section 2. Amendment to Auburn City Code. Auburn City Code Section 9.24.010 is amended as set forth in Exhibit A to this ordinance. Section 3. Implementation. The Mayor is authorized to implement those administrative procedures necessary to carry out the directives of this legislation. Section 4. Severability. The provisions of this ordinance are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance, or the invalidity of the application of it to any person or circumstance,will not affect the validity of the remainder of this ordinance, or the validity of its application to other persons or circumstances. Ordinance No. 6825 June 17, 2021 Page 2 of 3 Section 5. Effective date. This Ordinance will take effect and be in force five days from and after its passage, approval, and publication as provided by law. INTRODUCED: JUN 2 1 2021 PASSED: JUN 2 1 2021 JUN 2 12021 APPROVED: ANCY KUS, MAYOR ATTEST: APPROVED AS TO FORM: Shawn Campbell, MMC, City Clerk Kendra Comeau, City Attorney Published: U✓ i 2.10- ( i r1 1 L1A 'ilk C Ordinance No. 6825 June 17, 2021 Page 3 of 3 EXHIBIT A— ORD. 6825 A. No person may t is unlawful for any person to loiter in or near any public rights-of- way; or any public or private property in a manner or asunder circumstances manifesting the intent to engage in illegal drug-related activity contrary to RCW Chapters 69.41, 69.50, 69.52 or 69.53 RCW. For purposes of this section, "loiter" shall - .have the same meaning as ACC 9.50.010.A. , or to Chapter.9_22 ACC. B. The.following'may be considered in determining the intent required by subsection A: 1. Whether the Such person is a known unlawful drug user, possessor, or seller. For purposes of this sectionchcshapter,_a "known unlawful drug user, possessor, or seller" is a person who: a. a-person-who-has'been'icdnvicted in any court within this state of any controlled ;' substarice violation>:within;RCW 69.41, 69.50, 69.52 or 69.53, ora , _ ... :_ ,.,.,.,.,,nn + e „tee _ -_ possession;:orsale'of any:-of the`substances referred to in Chapters 69.41, 69.50, 69.52 and 69.53 RCW, or substantially similar laws of any political subdivision of this or any other state or of any other state; or b_who=is known:to.h'ave been arrested for a drug-related crime that not resulted+eg in the person's participationed in a diversionary program, deferral program, drug court or-a similar program; or : b_::.`__ "_______ displays physical characteristics or behaviors of drug intoxication andof usage, such as "needle tracks"; or d. who-is in possession of possesses marijuana in a manner not authorized by RCW X69.50.401,3_(1), 69.50A013(2) and/or in amounts that cxceedinq those set forth in 69.50.360(3); 2. Whether the Such person is currently subject to an order from any court prohibiting their_presence:in a high drug activity geographic area, such as an order issued pursuant to ACC 9.24.020 and/or ACC 9.24.030; 3. Whether the Such person's current observed behavior behaves in suchh-a manner-a: to raise raises a reasonable suspicion that they are currently or are about to engage in or-is-then-engaged-in-an-unlawful drug-related activity, including iby way of example only; such person acting as a "lookout"; 4. Whether a police officer is able to identify the person based on articulable factors - - - - • - -- - -- .-- : •.-- - - -- - • - -- - - - - - - , as member of a "gang;" or aa-association that whish-engages in illegal drug activity. Such Pastors may - - e e • - - -- - • • -- - - - - - - "- " e- - - - a gang or association include, but are not limited to clothing, tattoos, known association and/or affiliation with such a gang or association, specific and observed acts or circumstances consistent with drug-related activity, and gestures, signs, greetings and movements that are consistent with gang-related activity. The person's ; provided, that-clothing alone shall not be sufficient ,- ithout-mor'e,to support such an identification; . • _ _- _ • '__ _ -- _ _- _ _ -• -• _- _ _ _ _ assesiatieni 5. Whether the Such person is observed furtively transferrings small objects or packages for currency in a furtive fashion; 6. Whether the Such person flees takesht upon the appearance of a police officer; 7. Whether the Such person manifestly endeavors to conceal themselves or any object which reasonably could be involved in an unlawful drug-related activity; 8. Whether the areawhere;the person is observed loitering is ' repute known to police or to the public as man area of unlawful drug use and trafficking or; .. -g:_Tha . -•• - '' - -- - - - . -- • - • _ - ••- • a place-suspe'cted-o_f..drug activity pursuant to RCW Chapter 69.53RGW; and _-! 10_ .Whether Aany vehicle involved in the observed activity is registered to a known unlawful:drug user;=,possessor, or seller, or to a person with for whom there is an outstanding active bench warrant for a crime involving drug-related activity. C.. Penalty. Violation of this.section is a gross misdemeanor punishable by up to 364 days in iail and/or a $5,000 fine.