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NOH: Proposed Ordinance 1324 BEFORE THE BOARD OF COUNTY COMMISSIONERS LEWIS COUNTY, WASHINGTON IN THE MATTER OF: RESOLUTION NO. 21-091 NOTICE OF HEARING ON PROPOSED ORDINANCE 1324, PROHIBITING THE POSSESSION OF CONTROLLED SUBSTANCES, COUNTERFEIT SUBSTANCES, AND LEGEND DRUGS, AS WELL AS PROHIBITING CERTAIN RELATED ACTIVITIES, AND MIRRORING THE STATE PENALTIES FOR SUCH CRIMES WHEREAS, the Washington State Supreme Court's February 25, 2021 decision in State v. Blake, No. 96873-0, rendered RCW 69.50.4013 void for failing to include a constitutionally required mental element within the crime of possession of a controlled substance; and WHEREAS, the Blake decision's reasoning potentially threatens certain other possession provisions in Chapters 69.50 and 69.41 RCW, but also makes clear that including the required mental element would remedy the constitutional problem in such provisions; and WHEREAS, it appears unlikely that the State Legislature will be able to pass statutes remedying the constitutional problem in the 2021 legislative session; and WHEREAS, under Article XI, Section 11 of the state constitution, Lewis County has the power to pass police and sanitary regulations unless in conflict with general laws, which may include duplicating state-law crimes by local ordinance; and WHEREAS, Lewis County desires to reinforce the state crimes affected by the Bla ke decision against challenge by duplicating them in county ordinance with the required mental element. NOW THEREFORE BE IT RESOLVED that a hearing before the Board of County Commissioners is hereby scheduled for March 30, 3021 at or after 2PM, to take public testimony and/or written comment on the adoption of the proposed criminal ordinance; and NOW THEREFORE BE IT FURTHER RESOLVED that the Clerk of the BOCC is hereby instructed to proceed with all appropriate and necessary notifications, posting and publication for the changes as required by law. DONE IN OPEN SESSION this 16th day of March, 2021. Page 1 of 2 Res. 21-091 APPROVED AS TO FORM: BOARD OF COUNTY COMMISSIONERS Jonathan Meyer, Prosecuting Attorney LEWIS COUNTY, WASHINGTON Eric Eisenberg Gary Stamper By: Eric Eisenberg, Gary Stamper, Chair Chief Civil Deputy Prosecuting Attorney ATTEST: •y'c°`?--- �s;;• Lindsey R. Pollock, DVM P AL,' f.4dsey R. Pollock, DVM, Vice Chair • ig45 Rieva Lester �'�?s;;'CO`"��;:�' Sean D. Swope Rieva Lester, Sean D. Swope, Commissioner Clerk of the Lewis County Board of County Commissioners Page 2 of 2 Res. 21-091 NOTICE OF HEARING BEFORE THE LEWIS COUNTY BOARD OF COUNTY COMMISSIONERS ON PROPOSED ORDIANCE 1324 NOTICE IS HEREBY GIVEN that the LEWIS COUNTY, WASHINGTON, BOARD OF COUNTY COMMISSIONERS will hold a public hearing on March 30, 2021, starting at or after 2PM in the Commissioners' Hearing Room on the second floor of the Historic Courthouse at 351 NW North Street, Chehalis, Washington. Interested parties are encouraged to check the Commissioners' Business Meeting agenda for the Zoom login details. The agenda will be posted at https://lewiscountywa.gov/offices/commissioners/agendas-calendar/ at least 24 hours in advance of the meeting. The public hearing will consider Ordinance 1324, which creates a new chapter of the Lewis County Code prohibiting the possession of controlled substances,counterfeit substances,and legend drugs; prohibiting certain related activities; and mirroring the state penalties for such crimes. These penalties would include both misdemeanors and felonies, depending on the crime. The Ordinance regulates the unincorporated and incorporated areas of Lewis County, although incorporated areas may, by resolution, opt out of the ordinance's effect. It is to take effect immediately upon passage and sunset by July 1, 2021. At the public hearing, individuals will be invited to speak and/or provide written statements regarding the proposed ordinance. Comments on the proposed penalties for violations of the ordinance are especially encouraged. All individuals wishing to speak are encouraged to attend. Written comments may be submitted in advance of the hearing to: Natalie Dunlap, 360.740.1431 or natalie.dunlap @lewiscountywa.gov Details about the proposal will be available online at the agenda link provided above. Please select the agenda for March 16 (Notice) or March 30 (Hearing)to see the draft ordinance. The draft is subject to change before or at the hearing. Hard copies are available by mail or in person from the Lewis County Prosecuting Attorney's Office, 345 W. Main St., Second Floor, Chehalis WA 98532, or via phone or email request to Ms. Dunlap, above. The meeting site is barrier free. People needing special assistance or accommodations should contact Rieva Lester, Clerk of the Board of County Commissioners, at 360-740-1419 at least 72 hours in advance of the meeting. Rieva Lester/Publish in the Chronicle March 18, 2021. BEFORE THE BOARD OF COUNTY COMMISSIONERS OF LEWIS COUNTY, WASHINGTON A CRIMINAL ORDINANCE OF LEWIS COUNTY, ) WASHINGTON PROHIBITING THE POSSESSION OF ) ORDINANCE NO. 1324 CONTROLLED SUBSTANCES, COUNTERFEIT ) SUBSTANCES, AND LEGEND DRUGS; ) PROHIBITING CERTAIN RELATED ACTIVITIES; AND ) MIRRORING STATE PENALTIES FOR SUCH CRIMES ) WHEREAS, Chapter 69.50 RCW regulates controlled substances and counterfeit controlled substances, setting criminal penalties for violations of its provisions; and WHEREAS, Chapter 69.41 RCW regulates legend drugs, setting criminal penalties for violations of its provisions; and WHEREAS, the Washington State Supreme Court's February 25, 2021 decision in State v. Blake, No. 96873-0, rendered RCW 69.50.4013 void for failing to include a constitutionally required mental element within the crime of possession of a controlled substance; and WHEREAS, the Blake decision's reasoning potentially threatens certain other possession provisions in Chapters 69.50 and 69.41 RCW, but also makes clear that including the required mental element would remedy the constitutional problem in such provisions; and WHEREAS, it appears unlikely that the State Legislature will be able to pass statutes remedying the constitutional problem in the 2021 legislative session; and WHEREAS, under Article XI, Section 11 of the state constitution, Lewis County has the power to pass police and sanitary regulations unless in conflict with general laws, which may include duplicating state-law crimes by local ordinance; and WHEREAS, Lewis County desires to reinforce the state crimes affected by the Blake decision against challenge by duplicating them in county ordinance with the required mental element; and WHEREAS, under RCW 36.01.160 and RCW 36.32.120(7), when duplicating state-law crimes, a county is required to duplicate state-law penalties as well; and WHEREAS, Lewis County and many other counties have duplicated state-law penalties to create gross misdemeanors for, among other things, violations of the dangerous dog statute (Ch. 16.08 RCW), the subdivision statute (Ch. 58.17 RCW), and the Shoreline Management Act (Ch. 90.58 RCW), which penalties would not be lawful but for the fact that counties must match state-law penalties when criminalizing the same conduct the state criminalizes; 1 WHEREAS, in the controlled substances context, RCW 69.50.608 requires that local ordinances must be consistent with Chapter 69.50 RCW and provide for the same penalties therein; and WHEREAS, the penalties for possession and the related crimes addressed in this ordinance are specified in Chapters 69.50 and 69.41 RCW, as well as the Sentencing Reform Act, Chapter 9.94A RCW; and WHEREAS, those penalties persist even as to the now-invalidated RCW 69.50.4013, because they remain prescribed in Chapter 9.94A RCW, which was not invalidated by the Blake decision. NOW THEREFORE, having made the above findings, be it ordained as follows: I. New Chapter. A new chapter of Title 9 of the Lewis County Code is hereby created to include the following provisions: Section 1. Possession of controlled substance—Penalty—Possession of useable marijuana, marijuana concentrates, or marijuana-infused products—Delivery. (1) It is unlawful for any person knowingly to possess a controlled substance (as defined in RCW 69.50.101) unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter. (2) Except as provided in Section 2 of this chapter, any person who violates this section is guilty of a Class C felony punishable consistent with chapters 9A.20 RCW and 9.94A RCW. (3)(a) The possession, by a person twenty-one years of age or older, of useable marijuana, marijuana concentrates, or marijuana-infused products in amounts that do not exceed those set forth in RCW 69.50.360(3) is not a violation of this chapter. (b) The possession of marijuana, useable marijuana, marijuana concentrates, and marijuana-infused products being physically transported or delivered within the state, in amounts not exceeding those that may be established under RCW 69.50.385(3), by a licensed employee of a common carrier when performing the duties authorized in accordance with RCW 69.50.382 and 69.50.385, is not a violation of this chapter. (4)(a) The delivery by a person twenty-one years of age or older to one or more persons twenty-one years of age or older, during a single twenty-four hour period, for noncommercial purposes and not conditioned upon or done in connection with the provision or receipt of financial consideration, of any of the following marijuana products, is not a violation of this chapter: (i) One-half ounce of useable marijuana; 2 (ii) Eight ounces of marijuana-infused product in solid form; (iii) Thirty-six ounces of marijuana-infused product in liquid form; or (iv) Three and one-half grams of marijuana concentrates. (b) The act of delivering marijuana or a marijuana product as authorized under this subsection (4) must meet one of the following requirements: (i) The delivery must be done in a location outside of the view of general public and in a nonpublic place; or (ii) The marijuana or marijuana product must be in the original packaging as purchased from the marijuana retailer. (5) No person under twenty-one years of age may knowingly possess, manufacture, sell, or distribute marijuana, marijuana-infused products, or marijuana concentrates, regardless of THC concentration. This does not include qualifying patients with a valid authorization. (6) The possession by a qualifying patient or designated provider of marijuana concentrates, useable marijuana, marijuana-infused products, or plants in accordance with chapter 69.51A RCW is not a violation of this chapter. Section 2. Possession of forty grams or less of marijuana—Penalty. Except as provided in RCW 69.50.401(2)(c) or as otherwise authorized by law, any person who knowingly possesses forty grams or less of marijuana is guilty of a misdemeanor punishable consistent with chapter 9A.20 RCW. Section 3. Sale, delivery, or possession of legend drug without prescription or order prohibited—Exceptions—Penalty. (1) It shall be unlawful for any person to knowingly sell, deliver, or possess any legend drug except as permitted by RCW 69.41.030, now or as hereafter amended. (2)(a) A violation of this section involving the sale, delivery, or possession with intent to sell or deliver is a class B felony punishable according to chapters 9A.20 RCW and 9.94A RCW. (b) A violation of this section involving possession is a misdemeanor. Section 4. Counterfeit substances—Penalties. (1) Except as authorized by Chapter 69.50 RCW, it is unlawful for any person to knowingly create, deliver, or possess a counterfeit substance. (2) Any person who violates this section with respect to: 3 (a) A counterfeit substance classified in Schedule I or II which is a narcotic drug, or flunitrazepam classified in Schedule IV, is guilty of a class B felony and upon conviction may be imprisoned for not more than ten years, fined not more than twenty-five thousand dollars, or both; (b) A counterfeit substance which is methamphetamine, is guilty of a class B felony and upon conviction may be imprisoned for not more than ten years, fined not more than twenty-five thousand dollars, or both; (c) Any other counterfeit substance classified in Schedule I, II, or III, is guilty of a class C felony punishable according to chapters 9A.20 RCW and 9.94A RCW; (d) A counterfeit substance classified in Schedule IV, except flunitrazepam, is guilty of a class C felony punishable according to chapter 9A.20 RCW and 9.94A RCW; (e) A counterfeit substance classified in Schedule V, is guilty of a class C felony punishable according to chapter 9A.20 RCW and 9.94A RCW. Section 5: Construction (1) This chapter is intended to criminalize conduct criminalized under state law, with constitutionally required mens rea, and to mirror state penalties for such crimes. (2) If any penalty specified in this chapter is deemed to be in excess of that authorized by law, the maximum permissible penalty authorized by law shall be the maximum permissible penalty under this chapter. In such case, an interpreting court shall construe this chapter to continue to have full force and effect except insofar as the maximum penalties have been reduced. (3) If any penalty specified in this chapter is deemed to be out of conformity with RCW 69.50.608 such that is preempted, the penalty shall be adjusted to be in conformity with RCW 69.50.608. In such case, an interpreting court shall construe this chapter to continue to have full force and effect except insofar as the maximum penalties have been increased or reduced, as the case may be. Section 6. Severability If any provision of this chapter is deemed unconstitutional or contrary to law, it shall be severed, and the rest of this chapter shall continue in full force and effect. Section 7. Geographic Scope (1) This chapter shall apply to all unincorporated portions of Lewis County. (2) This chapter shall also apply to all incorporated portions of Lewis County. However, the governing body of any incorporated municipality within Lewis County may remove the municipality from the effect of this chapter by (a) duly passing a resolution declaring this chapter to have no effect in such municipality and (b) delivering a certified copy of the resolution to the Lewis County Board of County Commissioners. Upon delivery as set forth herein, this chapter shall cease to have any force and effect within the boundaries of such incorporated municipality. 4 Section 8. Sunset This chapter is temporary. It shall cease to have any effect as of 12:01AM on July 1, 2021. II. Effective Date. This ordinance is in the public interest and shall be effective immediately upon passage. PASSED IN REGULAR SESSION THIS 30th day of March, 2021, after a public hearing was held, pursuant to notice published in the Chronicle on March 18, 2021. APPROVED AS TO FORM: BOARD OF COUNTY COMMISSIONERS Jonathan Meyer, Prosecuting Attorney LEWIS COUNTY, WASHINGTON By: Gary Stamper, Chair ATTEST: Rieva Lester, Clerk of the Board Lindsey R. Pollock, DVM, Vice Chair By: Sean D. Swope, Commissioner 5 BOCC AGENDA ITEM SUMMARY Resolution: 21-091 BOCC Meeting Date: March 16, 2021 Suggested Wording for Agenda Item: Agenda Type: Legal Notice Notice of Hearing on proposed Ordinance 1324, prohibiting the possession of controlled substances, counterfeit substances, and legend drugs, as well as prohibiting certain related activities, and mirroring the state penalties for such crimes Contact: Eric Eisenberg Phone: 3607401241 Department: PAO - Prosecuting Attorney's Office Description: Notice of Hearing on proposed Ordinance 1324, prohibiting the possession of controlled substances, counterfeit substances, and legend drugs, as well as prohibiting certain related activities, and mirroring the state penalties for such crimes Approvals: Publication Requirements: Publications: User Status Chronicle March 18, 2021 PA's Office Approved Additional Copies: Cover Letter To: 117571 Ordinance 1324 Comments on the pro- posed penalties for viola- tions OF HEARING tions of the ordinance are BEFORE THE especially encouraged. All AFFIDAVIT LEWIS COUNTY individuals wishing to BOARD OF COUNTY speak are encouraged to OF PUBLICATION COMMISSIONERS attend. Written comments STATE OF WASHINGTON ON PROPOSED may be submitted t Natalie ad ORDINANCE 1324 of the hearing t NOTICE IS HEREBY Natalie Dunll ap, COUNTY OF LEWIS 360.740.1431 or EN that the LEWIS natalie . dunlap COUNTY, WASHINGTON, 2lewiscountywa.gov Alysa Andrews,and/or Mandy Klemola,and/or Kailyn Sawyer, BOARD OF COUNTY Details about the proposal and/or Cindy Thayer says that she is the legal clerk of COMMISSIONERS will will be available online at hold a public hearing on the agenda link provided The March 30.2021,starting at or after 2PM in the Coni above. Please select the Chronicle missioners' Hearing Room agenda for March 16 (No- on the second floor of the lice)or March 30(Hearing) Historic Courthouse at 351 to see the draft ordinance. a semi-weekly newspaper,which has been established,published The draft is subject to in the English language,and circulated continuously as a semi- NW North Street,Chehalis, change before or at the Washington. Interested hearing. weekly newspaper in the City of Centralia,and in Lewis County, parties are encouraged to Hard copies are available Washington,general circulation in Lewis County for more than check the Commissioners' by mail or in person from six(6)months prior to the date of the first publication of the Business Meeting agenda the Lewis County Prose- • notice hereto attached,and that the said Chronicle was on the 7th for the Zoom login details. cuting Attorney's Office, day of July 1941,approved as a legal newspaper by the Superior The agenda will be posted 345 W. Main St., Second Court of said Lewis County.And that the attached is a true copy at httos://lewiscountywa.g Floor, Chehalis WA 98532, and was published in regular issues(and not in supplement form) ov/offices/commissioners/ or via phone or email of said newsp:••r as LEGAL#117571 RE:Ordinance 1324 agendas-calendar/ at least request to Ms. Dunlap, 24 hours in advance of the above. `J, meeting. The meeting site is barrier once each for a period of j The public hearing will g consider Ordinance 1324, free.assistance needing accom- commencing on 03/18/2021 and ending on 03/18/2021 modations do stasho or conta t 8 8 which creates a new chap- modations should contact ter of the Lewis County Rieva Lester, Clerk of the and both regularly distributed to its subscribes during all of said Code prohibiting the pos- Board of County Commis- period.That the full amount of the fee charged for the foregoing session of controlled sub- sioners, at 360-740-1419 publics'• %'J• sum of$ / stances, counterfeit sub- stances, at least 72 hours in and legend drugs; advance of the meeting. prohibiting certain related ��/� /' activities;and mirroring the a.scri.•,.�., T. bef• a 03/18/2021 state penalties for such Published:The Chronicle _ March 18,2021 r r crimes. These penalties �����i.I •%-1• would include both mis- demeanors and felonies, Notary Pu. ' in and for the State4of Washington, depending on the crime. residing The Ordinance regulates the unincorporated and �/ 11 ��tt1i!'i:i N, L ` il_,.� , .."If/ incorporated areas of ;, ;••••. /, Lewis County, although ��`��;.:•,'.1 FY.,,, ,•• -� incorporated areas may,by A�' .?''..,;_ • resolution, opt out of the "`.- •;)'? ordinance's effect. It is to :am O`'' ,�w I • _ take effect immediately •"V- g \> ro:2.:= upon passage and sunset -� p;y0 .,0o• r by July 1,2021. •• • ` At the public hearing,• " •.•�,nmiss','O.•%;:.. individuals will be invited to ,,ii/J i4re of 1 P�`\� ten ant nd//entpsrregarding the proposed ordinance.