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HomeMy WebLinkAbout1992 Ordinance No. 014ORDINANCE No.d SERIES OF 1992 BY AUTHORITY COUNCIL BILL NO . 11 INTROD UCED BY COU NC IL MEMBER BULLOCK AN ORDINANCE REPEALING AND REENACT I NG TIT LE 5, CHAPT ER JC , SECT ION 5, OF THE ENGLEWOOD MUNICIPAL CODE. WHEREAS, Colorado Revised Statutu Section 18-13-122 esta bli sh ed co mpreh ensive prosc riptions and procedurea controlling possessio n nnd consumption of eth yl alcohol by underaged perso ns; and WHEREAS , tho se state controls requi ·re the proscriptions in the Englew ood Munic ipa l Code to be updated; and WHEREAS, the Engl ew ood Liquor License Authority has reviewe~ th e State Statutes nnd Section 18-13-122 Colorado Revised Statutes and recommend s lh e En glewoo d Muni cipa l Code be amended to conform to these State Statutory provisio ns; NOW , THEREFORE, BE IT ORDAINED BY THE Cl'r Y COUN CIL OF THE CITY OF ENGLEWOOD , CO LORADO, AS FOLLOWS : Sw.ill.11..l. Title 5, Chapter JC, Section 5, of the Englewood Municipal Code 1985, is hereby repealed and a new Section 5, is added entitled lllegnl Po ssession or Consumption of Eth yl Alcohol I,,, an Underage Person as follows : 6-ilG-& OFFENSES HIVOb¥1NC MI NO!IB A., Unlawful Ptirchue or Po99tssion . It s~nlftwful-fONlny-ptt!<>n ttnd.,..,,ge-eii:htcen (18 ) lo purchase 01 ha,e in-h~seosion-ttny inloxicoling li(IUON1H1ny-ltind..;,,...,.n:...,,,,,nner-wh1ot"90ever, &. Uftlawfuko-!'urch a,e l<,r Miner . It shall b<MJ nlawful-for-eny-person; whether-f6t--t-em, .. , .... ~re-.fer-e»y-minOH!ny-,tl'tim wltteM..Jtt,-m,,,ONHOrbidde,,-by-law-to-pu,..hese, &. HnlftWful-fo•r-MiM~-t\Mlher,-11.-9hall-be-ttn1"" ,u l r......ny-minor le en gage er 11ti1itt-t!,.,..,,...v;...-.,h,ny-1>lher-pe, ,,., whcther-for-re mune1"8:Hott-or-not,to--p-roctttt-foHueh--,nin or--nny--t1:rt,d e which-the-nttnOr-himselH!-forbidde!Hl;l1tw-to;,ul'thooec .l U C 5-J C-5 IL LEG AL POS SESSION OR CONSUMPTION OF ETHYL ALCO HOi. BY AN UNDERAGE PERSON : A . DEFINITIONS: FOR THE PURPOSE OF THIS SECTION THE FOLLOWING DEFINITIONS APPLY UNLESS THE CONTEXT OTHERWISE REQUIRES : 13 . ESTABLISHMENT ETHYL AL CO HOL POSSESSION OF ETHYL ALCOHOL PRIVATE PROPERTY A BUSINESS, FIRM, ENTERPRISE , SERVICE OR FRATERNAL ORGANIZATION , CL UB, INS TITUTIO N,ENT ITY , GROUP , OR RESIDENCE , AND ANY REAL PROP ERTY, INCLUDING BUILDINGS AND IMPROVEMENTS, CONNECTED THEREWITH, AND SHALL ALSO INCLUDE ANY MEMBERS, EMPLOYEES, AND OCCUPANTS ASSOCIATED THEREWITH . ANY SUBSTANCE WHICH IS OR CONTAINS ETHYL ALCOHOL . MEANS THAT A PERSON HAS OR HOL DS ANY AMOUNT OF ETHYL ALCOHOL ANYWHERE ON HIS PERSON , OR THAT A PERSON OWNS OR HAS CUSTODY OF ETHYL ALCOHOL, OR HAS ETHYL ALCOHOL WITHIN HIS IMMEDIATE PRESENCE AND CONTROL. ANY DWELLING AND ITS CURTILAGE - WHICH IS BEING USED BY A NATURAL • PERSON OR NATURAL PERSONS FOR HADITATION AND WHICH IS NOT OPEN TO THE PUBLI C AND Pl!IVATELY OWNED REAL PROPERTY WHICH IS NOT OP EN TO THE PUBLIC . "PRIVATE PR OPERTY" SHA LL NOT INCLUD E: (I) ANY ESTABLISHMENT WHI CH HAS OR IS REQUIRED TO HAVE A LICENSE PURS ANT TO ARTICLE 46 , 47 , OR 48 OF TITLE 12 , C.R.S .; (2) ANY ESTAB LISHME NT WHICH SELLS ETHYL ALCOHOL OR UPO N WHI CH ET HYL ALCO HOL IS SOLD : OR (3) ANY ESTABL ISHM ENT WH ICH LEA ES , RENTS , OR PRO VIDE S ACCO~l~IODA TIO:-I S TO MEMBERS OF THE P Bl.I C GENERA LLY . l. ANY PERSON UNDER TWENTY-ONE YEARS OF AGE WHO POS SESSE. OR CON SUMES ETHYL ALCOHOL CO MMITS ILLE(;.~L PO SS ESSION OH CONSUMPT ION OF ETHYL ALCO HOL BY AN UNDERAGE PERS ON. ILLEGAL POSSESSION OH CONSUMPT ION OF ET HYL ALCOH OL BY AN - UN DERAGE PER SON IS A STRI CT LIABILITY OFFENSE . • . 2- 2 . ILLEGAL POSSESSION OR CONSUMPTION OF ETHYL ALCOHOL BY AN UNDER-AGE PERSON SHALL BE PUNISHED BY A FINE OF NOT MO:'E THAN ONE HUNDRED DOLLARS . THE CO u RT, UPON SENTEN CING A DEFENDANT PURSUANT TO THIS PARAGRAPH (2), MAY IN ADDI TION TO ANY FINE, ORDER THAT THE DEFENDANT PE RFORM UP TO TW ENTY-FOUR HOURS OF USEFUL PUBLIC SERVICE, AND MAY FURTHER ORDER THAT THE DEFENDANT SUBMIT TO AND COMPl,ETE AN ALC OHOL EVALUATION OR ASSESSMENT, AN ALCOHOL EDUCAT ION PROGRAM , OR AN ALCOHOL TREAT MENT PROGRAM , AT SUC H DEFENDANT'S OWN EXPENSE . C. IT SHALL BE AN AFFIRM ATIVE DEF ENSE TO THE OFFENSE DESCRIBED IN SU BSECTION (Bl OF THIS SECTION THAT THE ETHYL ALCOHOL WA S POSSESSED OR ;ONSUMED BY A PERSON UNDER TWENTY-ONE YEARS OF AGE UNDER ~·HE FOLWWING CIRCUMSTANCES : 1. WHILE SUCH PERSON WAS LEG ALLY UPON PRIVATE PROPERTY WITH THE KNOWLEDGE AND CONSENT OF THE OWN l,R OR LEGAL POSSESSOR OF SUCH PRIVATE PROPERTY AND THE ETHYL ALCOHOL WAS POSSESSED OR CONSUMED WITH THE CONSENT OF HIS PAR ENT OR LEGAL GUARDIAN WHO IS PRESENT DURING SUCH POSSESSION OR CONSUMPTION ; OR 2. WHEN THE EXISTENCE OF i'.:THYL ALCOHOL IN A PERSON 'S BODY WAS DUE SOLELY TO THE INGESTION OF A CONFECTIONERY WHI CH CONTAINED ETHYL ALCOHOL WITHIN THE LIMITS PRESCRHJED BY SECTION 25-5-410 (1) (I) (II), C.R.S ., OR THE INGESTION OF ANY SUBSTANCE WHICH WAS MANUFACTURED, UESIGNED, OR INTENDED SOLELY FOR MEDICINAL OR HYGIENI C PURPOSES , OR SOLELY FROM THE INGESTION OF A BEVERAG E WHICH CONTAJ NI,,u LESS THAN ONE -HALF OF ONE PERCENT OF ET HYL ALCOHOL BY WEIGHT. D. TRE POSSESS IO N OR CONSUMPTION OF ETHYL ALCOH OL SHALL NOT CONSTITUTE A VIOLATION OF THI S SECTION IF SUC H POSS ESSIO N OR CONsu;.:!"l']ON TAKES PLACE FOR RELIGIOUS PURPO SES PROTECTE D BY THE FIRST AMENDMENT TO THE UNITED STATES CONSTl 'rUTIOII . E . PRIMA FACIE EVIDEN CE OF A VIOLAT ION OF SUBSE CTION (Bl OF THI SECT ION SHALL CONSIST OF: I. EVIDENCE THAT THE DEFENDANT WAS UNDER THE AGE OF TW ENTY-ONE YEARS AND POSSESSE D OR CONSU MED ETHYL ALCO HOL ANYW HERE IN THIS STATE ; OR 2. EVIDENCE THAT TIIE DEFENDANT WAS UNDER l'II E AGE OF TW ENTY -ONE YEARS AND MANIFESTE D ANY OF THE CHARA TER ISTICS COM MONLY ASSOC IAT ED WITH ETHYL ALCOHOL INTOXICAT IO OR IMPAIRMENT . . 3. F . DURING ANY TRIAL FOR A VIOLATION OF SUBSECTION (Bl OF THIS SECTION, ANY BO'ITLE, CAN, OR ANY OTHER CONTAINER WITH LABELING INDICATING THE CONTENTS OF SUCH BO'ITLE, CAN , OR CONTAINER SHALL BE ADMISSIBLE INTO EVIDENCE AND SHALL NOT CONSTITUTE HEARSAY . A JURY OR A JUDGE, WHICHEVER IS APPROPRIATE, MAY CONSIDER THE INFORMATION UPON SUCH LABEL IN DETERMINING WHETHER THE CONTENTS OF 1'HE BOTTLE , CAN , OR OTHER CONTAINER WERE COMPOSED IN WHOLE OR IN PART OF ETHYL ALCOHOL. A LABEL WHICH IDENTIFIES THE CONTENTS OF ANY BO'ITLE, CAN, OR OTHER CONTAINER AS "BEER", "ALE", "MALT BEVERAGE", "FERMENTED MALT BEVERAGE", "MALT LIQUOR", "WINE", "CHAMPAGNE", "WHISKEY", OR "WHISKY", "GIN ", "VODKA ", "TEQUILA", "SCHNAPPS", "BRANDY", "COGNAC ", "LIQUEUR", "C ORDIAL", "ALCOHOL", OR "LIQUOR" SHALL CONSTITUTE PRIMA FACIE EVIDENCE THAT THE CONTENTS OF THE BO'ITLE, CAN, OR OTHER CONTAINER WAS COMPOSED IN WHOLE OR IN PART OF ETHYL ALCOHOL. O . A PARENT OR LEGAL GUARDIAN OF A PERSON UNDER TWE!lorY-ONE YEARS OF AGE OR ANY NATURAL PERSON WHO HAS THE PERMIS SION OF SUCH !'ARENT OR LEGAL GUARDIAN, MAY GIVE, OR PERMIT THE POSSESSION AND CONSUMPTION OF, ETHYL ALCOHOL TO OR BY A PERSON UNDER THE AGE OF TWENTY-ONE YEARS UNDER THE CONDITIONS DESCRIBED IN PARAGRAPH (1) OF SUBSECTION (Cl OF THIS SECTION. THIS SUBSECTION (0) SHALL NOT BE CONSTRUED TO PERMIT ANY ESTABLISHMENT WHICH IS OR IS REQUIRED TO BE J.ICENSED PURSUANT TO ARTICLE 46, 47, OR 48 OF TITLE 12, C.R.S., OR ANY MEMBERS, EMPWYEES, OR OCCUPANTS OF ANY SUCH ESTABLISHMENT TO GIVE, PROVIDE, MAKE AVAILABLE, OR SEU, ETHYL ALCOHOL TO A PERSON UNDER TWENTY-ONE YEARS OF AGE. H. NOTHING IN THIS ORDINANCE SHALL BE CONSTRUED TO LIMIT OR PRECLUDE PROSECUTION FOR ANY OFFE SE PURSUANT TO ARTICLE 46, 47 , 'JR 48 OF TITLE 12, C.RS., EXCEPT AS PROVIDED I,, SUCH ARTICLES . I. THE QUALITATIVE RESULT OF AN ALCOHOL TEST OR TESTS SHALL BE ADMISSIBLE AT THE TRIAL OF ANY PERSON CHARGED WITH A VIOLATION OF SUBSECTION (Bl OF THIS SECTION UPON A SHOWING THAT THE DEVICE OR DEVICES USED TO CONDUCT SUCH TEST OR TESTS HAVE BEEN APPROVED AS AC CU RATE IN DETECTING ALCOHOL BY THE EXECUT IVE DIRECTOR OF THE DEPARTMENT OF HEALTH . OFFICIAL RE CO RDS OF THE D'!PARTME T OF HEALTH RFLATING TO THE CERT IFICATION OF BREATH TEST INSTRUME NTS, CERT IF ICAT ION OF OPERATORS AN D OPERATOR INSTRUCTO RS OF BREATH TEST I NSTRUMENTS , CE RTIFI CATIO N OF STANDARD SOLUT IONS, AND C ERT!FICA'T'ION OF LABORATORIES SHAJ.L BE OFFI CIA L RECORDS OF THE STATE. COPIES OF SUCH RECORD S, ATTESTED BY THE EXECUT IVE !)fRECTOR OF THE DEPARTMENT OF HEALT H OR HIS DEPUTY AND ACCO MPAN IED BY A CE RTIFICATE BEARING THE OFFICIAL SEAL FOR SAJD DEPARTME NT , WHI C H STATE THAT THE EXECUTIVE DIRECTO R OF THE DEPARTMENT HAS CUSTODY OF SUC H RlsCORDS, S HALL BE AD MISSIBLE IN COURT AN D S HA LL CONSTITUTE PRIMA FAC IE • EVIDENCE OF THE I NFORMATIO N CO 'TA!NED IN SUC H RE CORDS . THE • . 4 . K . OFFI CIAL SEAL OF THE DEPAR'l'MENT DESCRIBED IN THIS SUBSECT IO N (J ) MAY CONS IST OF A RUB BER STAMP PRODUCING A FACSIMIL E OF THE SEA L STAMPED UPON THE DOCUMENT . IN ANY JUDICIAL PRO CE EDING IN THE ENGLEWOOD MUN ICIPAL COU RT CONCERNING A CHAR GE UNDER SUBSECTION (B) OF THIS SECT ION, THE COURT SHALL TAKE JUDICIAL NO'l'I CE OF METHOD S OF TEST ING A PERSO N'S BLOOD , BREAT H, SALIVA, OR URINE FOR TIIE PRESENCE OF ALC OH OL AND OF THE DES IGN AND OPERATION OF DEVI CES CE RTIFIED BY TH E DEPARTMENT OF HEALTH FO R TESTING A PERS ON'S BLOOD , BREATH, SAL IVA, OR UR INE FOR THE PRESENCE OF ALCOHO L. THI S SUBSECTION (Kl SHAL L NOT PREVENT THE NECESSITY OF ESTABLISHING DU RING A TRIAL 'l'HAT THE TE STING DEVI CES WERE WORKJNG PROPE RLY AN D THAT SU CH TESTI NG DEV ICES WERE PROPERLY OPERATED . NOTHING IN THIS SUBSECTION (Kl SHALL PRECLUDE A DEFEN DANT FROM OFFERING EVID ENCE C " ERNING THE ACCURACY OF TESTING DEV ICES . Introduced, r ead in full , and passed on fi rst reading on the 16th of Morch, 1992 . Published as a Bill for an Ordin ance on the 19th day of March , 19 92. Read by titl e a n d passed on final reading on the 6th day of April , 1992 . Published by title as Ordinance No .d., Seri es of 1992 , on the 9th day of April , 1992 . --~J.,,_ /~ . ~----- Clyd e E. W~r ST #.t~ -------------------Patric ia H. Crow , City Clerk I, Patricia H. Crow, City Clerk of the City of Englewood , Col orado, h ereby ce rtify that the above a nd for egoi ng is a true copy of the Ord in an ce passed on final r ending an d publi sh ed by title as Ordinance No . d, Seri es of 199 2. ~-~~ Pn tricia H Cro w -5 - COUNCIL COMMUNICATION · Date March !G. 1992 INITIATED BY STAFF SOURCE Agenda Item 11 f City Attorney Rlck DeWitt, City Attorney ISSUE/ACTION PROPOSED Subject Ordinan ce Prohibiti ng Alc ohol Con sumption by Minors. Section 5-3C-5 (Offenses Involving Minors) of U1e Englewood Munlclpal Code proscribes mJnors under 18 years of age from conswntng alcoholic beverages . State statutes prohibit persons under 21 years of age from consuming alcoholic beverages except under 11mlted clrcwnstances. Specifically , Section 18 -13-122 of tile Colorado Revis ed Statutes sets fortll proscriptions and exceptions controlling alcohol consumptions by mJnors . Section 18-!3-122(d)(8) authorizes munlclpalltles to pass similar ordinances . PREVIOUS COUNCIL ACTION None. STAFF ANALYSIS Because U1 e present Englewood ordinance Is outdated, an estimated ten cases have r ece ntly been dismissed b ec ause persons 18 years h ave b ee n cited for alcohol offe n ses. Th e Englewood Liquor Li ce nsing Autl1ority r ecommends adoption of tills ordinance. BACKGROUND The present Englewood ordinance wa s \\Tllten when 18 year olds co uld drink 3 .2% beer . but hasn·t been changed since state statutes raised tl1 e drinking age t o 2 1 years . One reason for tl1e delay has bee n the grandfather clause. whi ch let those who wer e 18 at the passage of U1 e statute co n s ume 3.2% beer . FINANCJ.i-. No nnan clfll expense to Englewood Is seen by the passage o(Uus ordinance .