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HomeMy WebLinkAbout04/25/1988 Meeting e M I NUT E S Eugene City Council Dinner/Work Session BJ's Restaurant, 44 East 7th Avenue April 25, 1988 5:30 p.m. COUNCILORS PRESENT: Freeman Holmer, Robert Bennett (after 5:55 p.m.), Debra Ehrman, Jeff Miller, Emily Schue, Cynthia Wooten. COUNCILORS ABSENT: Ruth Bascom, Roger Rutan. His Honor Mayor Brian B. Obie called the work session to order at 5:50 p.m. I. ORDINANCE REGULATING THE SALE OF DRUG PARAPHERNALIA Mayor Obie said the proposed ordinance had been sent to the Public Safety Advisory Committee with a request for its recommendation before the council holds a public hearing on the item. e Vic Mann, Department of Public Safety, reported on the preparation of the proposed ordinance. He said research on the experience of other cities and states in the area of drug paraphernalia was used in preparing this ordinance. Lieutenant Mann reported that last year the Eugene Narcotics Unit closed down more methamphetamine labs than the City of Portland. During the last legislative session, the department lobbied actively on the precursor bill that makes methamphetamine production more difficult. The department is presently implementing a Career Criminal Program that focuses on repeat offenders and drug-related crimes. He said the program has identified over 2,000 individuals in the Eugene metropolitan area and approximately 75 percent of those people have drug related arrests. Lieutenant Mann said the ordinance under consideration by the council would be one more tool to be used in the City's drug enforcement efforts. There are two basic approaches to regulating the sale of drug paraphernalia. The most obvious is to ban the sale of such items, and more than 40 states have enacted this type of regulation. Other agencies contacted by Lieutenant Mann indicated the ban is used most effectively for seizure during a raid, but it has limited effectiveness on sales. The second type of regulation is the use of a business license law, reported to be an effective approach in Bend and Roseburg. Lieutenant Mann cited Hoffman Est~tes, Illinois, as the landmark decision of regulating drug paraphernalia sales. Lieutenant Mann said the Department of Public Safety favors the business license approach because of its anticipated effectiveness in changing the way drug paraphernalia is marketed within the City. This ordinance would require - MINUTES--Eugene City Council Dinner/Work Session April 25, 1988 Page 1 e businesses to keep drug paraphernalia items out of sight of juveniles. Lieutenant Mann said it could be enforced using current business licensing mechanisms and with current Department of Public Safety personnel levels. At Mayor Obie's request, Lieutenant Mann said he had investigated the magnitude of the drug problem in Eugene. He reported a high correlation between property crimes and drug-related activity. Skipworth reported that of the petitions filed on juveniles, 80 percent of those juveniles tested positive for drug use. Oregon Trails reported 177 juvenile inpatients since they began operating in September 1987. Dan Barkovic of the City Attorney's Office introduced the ordinance. He described it as incorporating what is already in place for regulating various businesses under Chapter Three in terms of licensing requirements. Mr. Barkovic listed specific requirements for a business license under the proposed ordinance: 1) records of drug paraphernalia sales must be kept, 2) a license must be obtained by a business that sells drug paraphernalia, 3) drug paraphernalia must be separated from other merchandise so that minors are not allowed to view it, and 4) persons who sell drug paraphernalia may not have convictions for drug-related offenses. e Enforcement procedures for violation of any substantive provisions of the ordinance include: 1) the person, business, or corporation will be cited into municipal court under a civil proceeding with a maximum fine of $500, 2) the City of Eugene can undertake revocation of the license through an administrative process, and 3) a forfeiture proceeding can be brought for three or more convictions for violation of the drug paraphernalia sales license. Mr. Barkovic said the last procedure would be good incentive to keep businesses in compliance. The mechanics of license application will not change from current Chapter 3 proceedings. Mr. Barkovic described as one of the important aspects of the ordinance its requirement that it must be shown that the person is selling drug paraphernalia knowing or having reason to know that it will be used with a controlled substance. He called this the mental element of the offense. It is anticipated that the licensing agency will contact businesses that it thinks are selling drug paraphernalia and will make a threshold determination of whether the merchandise qualifies as drug paraphernalia under the ordinance. If the City determines the merchandise is drug paraphernalia, it will notify the business that a license is required. Mr. Barkovic said the State has considered an outright ban of drug paraphernalia, and if a state-wide ban were to be enacted, the City's ordinance would become moot. Until that time, other options include an outright ban with a criminal penalty or an outright ban with a fine only. Mayor Obie expressed the council's appreciation for the research and development of the proposed ordinance. Answering Mr. Holmer's question of whether $500 was the maximum allowable penalty, Mr. Barkovic said that as a civil violation instead of a criminal e MINUTES--Eugene City Council Dinner/Work Session April 25, 1988 Page 2 e offense requlrlng a jury trial with the standard of proof beyond a reasonable doubt, $500 is the current Chapter 3 limit. Lieutenant Mann said initial enforcement inspections would not require the presence of a vice officer. Sergeant Siel said the department is aware of two businesses in the area at this time that sell outright and one that sells on a wholesale basis. He said there are also shops in Eugene that sell miscellaneous drug paraphernalia in conjunction with other merchandise. Lieutenant Mannis opinion was that the licensing and inspection processes of the ordinance would not significantly reduce the department's resources for other activities. License applications would initially go to the Permit and Information Center, with the Department of Public Safety performing the background screening. Ms. Wooten referred to page two of the proposed ordinance and asked about common items listed under items Ch) and Ci). Mr. Barkovic explained that the listed items would have to be designed for or intended for use with controlled substances, and the ordinance would require a determination of that design and intent through the use of various factors listed elsewhere in the ordinance. He said this could be a difficult standard to prove. He added that the language has been taken from the Model Drug Act which has been tried and tested by the courts. Lieutenant Mann said he had discussed the impact of the proposed ordinance with a Valley River Center tobacco seller. Nothing in the shop would have led Lieutenant Mann to ask the business to obtain a license. e Mr. Barkovic said the ACLU has expressed some concerns regarding the proposed ordinance, and several changes have been suggested. Prior convictions for possession of less than an ounce of marlJuana would be excluded from the requirement that persons with prior convictions for a drug offense will not be allowed to sell drug paraphernalia. A difficult moral issue was identified in connection with the Willamette Valley AIDS Council's proposal to dispense syringes in an attempt to counter the spread of AIDS. Because it is known that the syringes are to be used with controlled substances, the activity would come under the purview of the proposed ordinance. Mr. Barkovic said exemptions would exist for licensed health care providers, but he was uncertain if the council would qualify for that consideration. Another concern of the ACLU was the record-keeping aspect of the licensing. Mr. Barkovic said under Chapter 3, used merchandise dealers are already required to keep similar records of transactions and to open these records to the police department. He was unable to find any cases that successfully challenged this requirement on privacy grounds. Mr. Barkovic said there would be a slight language modification to require that the seller accurately record the name and address of a purchaser. e MINUTES--Eugene City Council Dinner/Work Session April 25, 1988 Page 3 e e e Ms. Wooten said she was prepared to go to public hearing with the adjustment suggested by Mr. Barkovic regarding an employee's prior conviction for possession of less than an ounce of marijuana. She said she would like to remain open on the inclusion of hypodermic needles. Mayor Obie reminded Ms. Wooten of the exclusion of items distributed for health purposes, and Lieutenant Mann suggested the possibility of the Willamette Valley AIDS Council being licensed by the State Health Division. Mr. Barkovic said the proposed ordinance would be in the appropriate format for a public hearing. Mr. Miller commended the creativity shown in problem solving without incurring excessive expense for the City. Answering Mr. Holmer's request for clarification, Mr. Barkovic said because possession of less than an ounce of marijuana is a violation rather than a misdemeanor or felony, persons convicted of that violation are excluded from the prior conviction requirement. Ms. Wooten suggested increasing the cost of a license to cover processing costs. Mr. Barkovic said $100 was a standard fee established through the City Manager's office. When Ms. Wooten asked for consideration of an increase in the license application fee, Mr. Barkovic cautioned that setting the fee too high might deny protection. Mayor Obie requested further explanation of forfeiture and seizure penalties, and recalled that the council had rejected a general forfeiture and seizure ordinance in the past because of concern about the seizing of unrelated property. Lieutenant Mann said research indicated forfeiture is an effective enforcement tool. He added that only items specific to drug transactions and paraphernalia would be subject to the penalty. Mayor Obie suggested that more consideration be given to forfeiture and seizure in drug-related crimes, with funds possibly allocated to Joint Social Services or to victims of the crimes. Ms. Wooten agreed with Mayor Obie's suggestion to reconsider this issue, but she said she continued to be concerned about situations in which innocent families of criminals might be penalized unfairly. Lieutenant Mann said that a local forfeiture option might shorten a lengthy process that is now only available through Federal courts. He added that in the particular ordinance under consideration, forfeiture would involve destruction of paraphernalia that has been determined to have no legitimate judicial purpose. Sergeant Siel said a genpral forfeiture ordinance in addition to the drug paraphernalia ordinance would allow seizure of equipment as well as seizure of the actual drugs, and would increase the likelihood that drug-manufacturing operations would be destroyed. MINUTES--Eugene City Council Dinner/Work Session April 25, 1988 Page 4 e e e Mayor Obie said the council appeared interested in reviewing a general forfeiture ordinance. Ms. Wooten reported complaints about the way forfeiture now results in the destruction of valuable merchandise (guns). She said she was hesitant to review general forfeiture without careful examination of ways to protect relatives and friends from becoming the victims. Councilors Holmer, Miller, Schue, and Bennett favored the review. Mayor Obie asked Mr. Barkovic and Lieutenant Mann to return with a proposal for a general forfeiture ordinance that takes into account the concern for protection expressed by Ms. Wooten. A public hearing on the drug paraphernalia ordinance was scheduled May 9. Mr. Gleason acknowledged the difficult job being done by Sergeant Siel and the unit's staff. Sergeant Siel responded to Mr. Holmer's concern about protection of property owners by saying it is important to educate rental property owners to monitor who rents and to seek legal redress for repairs made necessary by renters engaged in illegal drug-related activity. The meeting was recessed at 6:45 p.m. Respectfully submitted, ~.~ ..1' /frZ) /lA '- ,-~~~.,.~~ '-. '7 Micheal Gleason, City Manager CRecorded by Mary Feldman) mncc042588-530 MINUTES--Eugene City Council Dinner/Work Session April 25, 1988 Page 5