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HomeMy WebLinkAbout02/03/1994 13 A K E R S F I E L D Patricia M. Smith, Chair Patricia J. DeMond Lynn Edwards Staff: Tmdy Slater AGENDA LEGISLATIVE AND LITIGATION COMMITTEE Thursday, February 3, 1994 12:15 p.m. City Attorney's Conference Room 1. ROLL CALL 2. APPROVAL OF MINUTES OF THE OCTOBER 25, 1993 MEETING 3. PRESENTATIONS 4. PUBLIC STATEMENTS 5. DEFERRED BUSINESS 1. AN ORDINANCE ADDING CHAPTER 9.13 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO LOITERING FOR THE PURPOSE OF ENGAGING IN A PROSTITUTION OFFENSE 'Z. .AN ORDINANCE ADDING CHAPTER 9.19 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO LOITERING FOR PURPOSES OF DRUG-RELATED ACTIVITIES. 3. A'RESOLUTION ADOPTING THE POLICE DEPARTMENT TRAINING OUTLINE FOR DRUG LOITERING ORDINANCE 6. NEW BUSINESS 1. ESTABLISHMENT OF REGULAR MEETINGS 7: ADJOURNMENT FILE COPY BAKERSFIELD ~~~~~r P atr ici a M. Smith, Ch air : ' iarug~ Patrieia J. DeMond Lynn Edwards AGENDA SUMMARY REPORT LEGISLATIVE AND LITIGATION COMMYITEE Monday, October 25, 1993 12:00 noon City Manager's 'Conference Room 1. Loitering Ordinance for Purposes of Drug. Related Activities 2. Loitering Ordinance for Purposes of Prostitution Staff vail draft report to Council on Committee's review of and support for the proposed ordinances and the need for community review prior to Council consideration. Committee members provided staff with names of knowledgeable community, groups to contact for education of the public. City Attorney staff will return to Committee with public and Council input by late December for final review by Council in early 1994. 3. Legislative Platform Changes reflecting anemphasis on city rather than local government were made to distinguish between county and city governance. To be placed on Council agenda for approval. 4. Request for English as an Official Language Committee reviewed available information; no further action needed. 5. Legislative Update Staff reported requesting copies of Brown Act bills (SB 36, SB 1140, and AB City Attorney's Office will review to determine their legal impacts upon the City. Agenda Summary Report Legislative and Litigation Committee October 25, 1993 Page -2r 6. Set Next Meeting To be determined. In attendance: Councilmember Patricia M. Smith-Chair, Councilmember Patricia J. DeMond, Councilmember Lynn Edwards, Alan TandY, Trudy Slater, Judy Skousen, Michael Allford, Bill Horton. .alb NOTICE OF SPECIAL MEETING OF THE LEGISLATIVE AND LITIGATION COMMITTEE -OF THE COUNCIL OF THE CITY OF BAKERSFIELD NOTICE IS HEREBY GIVEN that the Legislative and Litigation Committee of the City Council will hold a Special Meeting for the purpose of a Committee Meeting on Thursday, February 3, 1994, at 12:15 p.m., in the City Attorney's Conference Room on the second floor of City Hall, 1501 Truxtun Avenue, Bakersfield, California, to 'consider: 1. ROLL CALL 2. APPROVAL OF MINUTES OF THE OCTOBER 25, 1993 MEETING 3. PRESENTATIONS 4. PUBLIC STATEMENTS 5. DEFERRED BUSINESS 1. AN ORDINANCE ADDING CHAPTER 9.13 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO LOITERING FOR THE PURPOSE OF ENGAGING IN A PROSTITUTION OFFENSE 2. AN ORDINANCE ADDING CHAPTER 9.19 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO LOITERING FOR PURPOSES OF DRUG-RELATED ACTIVITIES. 3. A RESOLUTION ADOPTING THE POLICE DEPARTMENT TRAINING OUTLINE FOR DRUG LOITERING ORDINANCE 6. NEW BUSINESS 1. ESTABLISHMENT OF REGULAR MEETINGS 7. ADJOURNMENT Tmdy Slate~, Administrative-Analyst ORDINANCE NO. AN ORDINANCE ADDING CHAPTER 9.13 OF THE BAKERSFI~.~ MUNICIPAL CODE RELATING TO LOITERING FOR THE PURPOSE OF ENGAGING IN A'PROSTITUTION OFFENSE BE IT ORDAINED by the Council of the City of Bakersfield as follows: SECTION 1 Chapter 9.13 is hereby added to the Bakersfield Municipal Code to read as follows: CHAPTER 9.13 LOITERING F~R THE PURPOSE OF ENGAGING' IN A PROSTIT%FfION OFFENKE Sections: 9.13.010 Purpose. 9.13.020 Definitions. 9.13.030 Loitering for the purpose of engaging in prostitution. 9.13.040 Severability. 9.13.050 Penalty. 9.13.010 Purpose. This chapter is enacted for the purpose of assisting local law enforcement in controlling prostitution-related activities and to minimize the adverse effect these activities have upon the City of Bakersfield. The City Council finds and determines that loitering for the purposes of engaging in a prostitution offense constitutes a public nuisance which, if left unabated, adversely affects the City's image, public safety, residential and business development, and tends to encourage further criminal activity. Furthermore, prostitution-related actiVities consume an inordinate amount of the City's limited law enforcement resources. The ordinance is intended to supplement existing state legislation by making it a criminal offense to loiter in a public place for purposes of engaging in a prostitution offense. 9.13.020 Definitions. For purposes of this chapter, the following definitions will apply: A. "Commit .Prostitution" means to engage in sexual conduct for money or other consideration, but does not include sexual conduct engaged in as a part of any stage performance, play, or other entertainment open to the public. B. "Known Prostitute or Procurer" means a person who within one (1) year previous to the date of arrest for violation of this section has, within the knowledge of the arresting officer, been convicted in any court of the State of California for any offense relating to or involving prostitution as defined in the Penal Code of the State of California or the Bakersfield Municipal Code. C. '"Public Place" means an area open to the public or exposed to public view and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, automobiles (whether moving or not), and buildings open to the general public, including those which serve food or drink, or provide entertainment and the doorways and entrances to buildings or dwellings and the grounds enclosing them. 9.13.030 Loitering for the puz~se of engaging in prostitution. It is unlawful for any person to loiter in or near any public place with the intent to commit prostitution. Such intent is evidenced by acting in a manner and under circumstances which openly demonstrate the purpose.of inducing, enticing or soliciting prostitution or procuring another to commit prostitution. No arrest shall be made for violation of this section unless the arresting officer first affords such person an opportunity to explain such conduct, and no one shall be convicted of violating this section if it appears at trial that. the explanation given was true and disclosed a lawful purpose. Among the circumstances which may be considered in determining whether a person intends.such prohibited conduct are that she or he: A. Repeatedly beckons to, stops, or attempts to stop or engage passersby in conversation; B. Repeatedly stops or attempts to stop motor vehicle operators by hailing, waving of arms or any other bodily gesture; C. Has previously been convicted of violating this section; D. Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to contact or stop pedestrians; or 2 E. Is a known prostitute or procurer. 9.13.040 Severability. If any section, sub-section, sentence, clause, phrase or portion of this chapter is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the Validity of the remaining portion thereof. 9.13.050 Penalty. A violation of any provision of this chapter is a misdemeanor, punishable as set forth in the Penal Code of this state. SECTION 2 This ordinance shall be posted in accordance with the Bakersfield Municipal Code and shall become effective thirty (30) days from and after the date of its passage. oOo I HEREBY CERTIFY that the foregoing Ordinance was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on , by the following vote: CITY CLERK and Ex Officio Clerk of the Council of the City of Bakersfield APPROVED BOB PRICE MAYOR of the City of Bakersfield APPROVED as to form: JUDY K. SKOUSEN ACTING CITY ATTORNEY of the City of Bakersfield ORD~m~CBq~O1TER.PRO 01/25/94 4 ORDINANCE NO. AN ORDINANCE ADDING CHAPTER 9.19 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO LOITEHIN~ FOR PURPOSE~ OF DRUG-RELATED ACTIVITIES. BE IT ORDAINED by the Council of the City of Bakersfield as follows: SECTION 1 Chapter 9.19 is hereby added to the Bakersfield Municipal Code to read as follows: CHAPTER 9.19 LOITERING FOR DRU~' ACTIVITI~ Sections: 9.19.010 Purpose. 9.19.020 Definitions. 9.19.030 Acts prohibited. 9.19.040 Circumst~-~es. 9.19.050 Enforcement. 9.19.060 Penalty. 9.19.010 Purpose. Like many other communities across this nation, the City of Bakersfield is experiencing an increase in the street sales of marijuana, PCP, rock cocaine and other controlled substances as defined in the Health and Safety Code of this state. It is the intent of this ordinance to assist law enforcement personnel of this city in abating the scourge of sales of controlled substances. The City Council finds and determines that the sale of controlled substances constitutes a continuing public nuisance which adversely affects the public health, safety and welfare, fuels fear among the community and is a factor which not only depreciates the value of property upon which such activity occurs, but also depreciates the value of adjacent and surrounding properties, and adversely affects the city's image, business, development and housing costs. The purpose of this ordinance is, therefore, to further assist law enforcement to minimize the impact which drug sales have on the city's quality of life, overall sense of feeling of safety and security of its citizens, and economic stability. The sale of controlled narcotic substances breeds criminal and gang- related activities and breeds community discontent. This ordinance will serve to mitigate these adverse effects by further limiting the means by which drug sales can occur. 9.19.020 Definitions. As used in this subdivision, "loiter" means to delay or linger without a lawful purpose for being on the property and for the purpose of committing a crime as opportunity may be discovered. 9.19.030 Acts prohibited. It is unlawful for any person to loiter in, on or near any thoroughfare or place open to the public or near any public or private place in a manner and under circumstances manifesting the purpose of engaging in drug-related activity defined as offenses in chapters 6 and 6.5 of division 10 of the California Health and Safety Code. 9.19.040 Circumstances. Among circumstances that may be considered in determining whether such purpose is manifested are that the person: A. Is a known unlawful drug user, possessor, or seller. For purposes of this chapter, a "known unlawful drug user, possessor or seller" is a person who has, within the knowledge of the arresting officer, been convicted in any court within this state of any violation involving the use, possession or sale of any of the substances referred to in chapters 6 and 6.5 of division 10 of the California Health and Safety Code, or such person has been convicted of any violation of any of the provisions of said sections or substantially similar laws of any political subdivision of this state or of any other state; or a person who displays physical characteristics of drug intoxication or usage, such as "needle tracks"; or a person who possesses narcotic and/or drug paraphernalia. For purposes of this chapter, "narcotic and/or drug paraphernalia" is defined as any device, contrivance, instrument or apparatus designed or marketed for the use for smoking or injecting, ingesting or consuming marijuana, hashish, PCP or any controlled substance, as defined in section 11364 and related provisions of the Health and Safety Code of this state, including roach clips and cigarette papers and rollers designed or marketed for the use for the smoking of the foregoing; B. Is currently subject to an order prohibiting his or her presence in an high drug activity geographic area; C. 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 activity, including, by way of example only and not limited to, acting as a "look-out"; 2 D. Is physically identified by the officer as a member of a "gang" or association which has, as its purpose, illegal drug activity; E. Transfers small objects or packages for currency in a furtive fashion; F. Takes flight upon the appearance of a police officer; G. Tries to conceal himself or herself or any object which reasonably could be involved in an unlawful drug-related activity; H. Is in an area that is known for unlawful drug use and trafficking; I. Is on or in premises that have been reported to law enforcement as a place suspected of unlawful drug activity; J. Is in or within six feet of any vehicles registered to a known unlawful drug user, possessor, or seller, or a person for whom there is an outstanding warrant for a crime involving drug- related activity. 9.19.050 Enforcement. Enforcement of this chapter shall be pursuant to the policy statement dated February 3, 1994, issued by the Chief of Police, as approved by the City Council in Council Resolution No. , adopted on February__, 1994. A copy of said resolution shall be kept on file in the office of the City Clerk. 9.19.060 Penalty. A violation of any provision of this chapter is a misdemeanor, punishable as set forth in the Penal Code of this state. SECTION 2 This Ordinance shall be posted in accordance with the Bakersfield Municipal Code and shall become effective thirty (30) days from and after the date of its passage. 000' 3 I HE~RRY CERTIFY that the foregoing Ordinance was ~ passed and adopted by the Council of the City of Bakersfield at a : regular meeting thereof held on , by the following vote: CITY CLERK and Ex Officio Clerk of the Council of the City of Bakersfield APPROVED BOB PRICE MAYOR of the City of Bakersfield APPROVED as to form: JUDY K. SKOUSEN ACTING CITY ATTORNEY of the City of Bakersfield 01/25/94 RESOLUTION NO. A RESOLUTION ADOPTING THE POLICE DEPARTMENT TRAINING O%~LINE FOR DRUG LOITERING ORDINANCE WHEREAS, legislation is currently pending before the Council adding chapter 9.19 to the Bakersfield Municipal Code relating to loitering for purposes of drug-related activities; and W~ER~AS, the Chief of the Bakersfield Police Department has issued a policy statement setting forth the police officer training outline for enforcement of said drug loitering ordinance; and W~I~REAS, adoption of said training outline is necessary to give full force and effect to the enforcement provisions of the drug loitering ordinance; NOW, TFR~v~RE, BE IT RESOL~~FO~: 1. The above recitals are true and correct. 2. The Chief of the Police Department is directed to undertake the instruction of police officers as fully set forth in said officer training outline (attached as Exhibit "A") so as to give full force and effect to the enforcement provisions of the ordinance. o0o I HEREBY CERTIFY that the foregoing. Resolution was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on , by the following vote: CITY CLERK and Ex Officio Clerk of the Council of the City of Bakersfield APPROVED: BOB PRICE Mayor of the City of Bakersfield APPROVED AS TO FORM: JUDY K. SKOUSEN Acting City Attorney of the City of Bakersfield PDTRAIN.RES 01/19/~ EXHIBIT A CITY OF BAKERSFIELD DRUG LOITERING ORDINANCE TRAINING O~TLINE FOUR HOURS OF INSTRUCTION INTRODUCTION: By ordinance, the City Council of the City of Bakersfield has added chapter 9.19 to the Bakersfield Municipal Code. The chapter relates to loitering for purpose of drug-related activities, making it a misdemeanor to loiter under certain circumstances. Only officers who receive a four-hour block of instruction relating to chapter 9.19 will be allowed to enforce its provisions. The four-hour block of instruction will cover the following: I. Elements of Bakersfield Municipal Code sections 9.19.010 through 9.19.060. A. Loitering. 1. To remain in an area without apparent purpose for a sustained period of time. A period of surveillance is required to establish that the subject is loitering. 2. Citizen information may also be 'used to establish how long the subject has been loitering at the location. _ B. Subject's conduct/circumstances establish probable cause that the subject intends to engage in illegal drug activity based on your training, experience, and knowledge. 1. Subject is a knowndrug user, ~ossessor, or seller. This is established through officer's observations, personal knowledge, and by documents, such as RAP sheets or court dockets. 2. Subject is currently prohibite~bycourtorderfrc~ being in highdrugactivit~area. Officer may have personal knowledge of the court order, but must obtain actual court documentation for'filing of the case. 3. Suspicious behavior. Reasonable for the officer to believe that the subject is about t° engage in unlawful drug activity, to include acting as a lookout. 4. Gang members who associate for ~m~rpose of illegal drug activity. Personal knowledge by the officer that part of the gang's activity is to engage in illegal drug activity, and the subject in question is a known gang member. Page 1 of 3 Pages 5. Dealing~ Transfer of small object or packages for currency in a furtive fashion. 6. Flight from police. Subject takes flight upon the appearance of a police officer. 7. Concealment. Subject attempts to conceal himself or any object that could reasonably be involved in unlawful drug activity. 8. Location. Subject is in an area that is known for unlawful drug use and trafficking. 9. Premises. Subject is on or in premises that have been reported to law enforcement as a place suspected of unlawful drug activity. 10. Vehicles. Subject is in or within six feet of any vehicle registered to a known unlawful drug user, possessor, or seller, or a person for which there is an outstanding warrant for a crime involving drug-related activity. II. Legal Background. A. Laws which prohibit loitering for a specific illegal purpose generally upheld as constitutional. B. Loitering for purposes.of prostitution, and loitering in the area of toilets for lewd purposes are "mirror images" of drug loitering law. III. Enforcement Guidelines. A. Use ordinance conservatively. When the violations occur, Officers should initiate an investigation to determine the extent of the violation. When in doubt, do not arrest. B. Drug loitering law is not to b~ used indiscriminately to limit the access of persons to public or private areas. C. Ideally, more than one of the listed circums~ncesshoulcl be present for an arrest. IV. Use and Application. A. Not intended to be a "catch-all" ordinance. Don't contact a subject with one intent and then fall back on Drug Loitering Ordinance if the criteria does not exist. B. Only Officers who receive training on the proper use of the ordinance may enforce this ordinance. Said enforcement shall be completed in a courteous and professional manner. Page 2 of 3 Pages C. Do not use this ordinance as a lesser included offense to a felony drug charge; however, it may be cited as probable cause if warranted. D. Do not use to bolster a questionable arrest. Cases involving the use of this ordinance must be able to weather the test of court challenge. V. Reporting. A. Articulate the elements and conditions that surround the circumstances of the offense and arrest. B. Incorporate in the arrest report the officer's expertise --for example, schools attendee%, experience, training, number of previous drug arrests and search warrants. VI. Department Policy. A. Explanation of purpose. B. Procedure for implementation of the ordinance. All arrests made under the provisions of the Ordinance are approved by a supervisor who is also trained in the Ordinance. DATE: February 3, 1994 S. E. BRUMMER Chief of Police Page 3 of 3 Pages