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HomeMy Public PortalAboutOrdinance 403 Amending Chapter 10 Article 3 of The Fraser Town Code Regarding Possession of Marijuana & the Possession of Drug Paraphenalia TOWN OF FRASER ORDINANCE NO. 403 Series 2013 AN ORDINANCE AMENDING CHAPTER 10 ARTICLE 3 OF THE FRASER TOWN CODE, REGARDING POSSESSION OF MARIJUANA, AND THE POSSESSION OF DRUG PARAPHERNALIA WHEREAS, Colorado voters recently passed Amendment 64, which amended Article XVIII of the Colorado Constitution by the addition of a new section 16 regarding the personal use and regulation of marijuana; WHEREAS, Amendment 64 permits the possession, use, display, purchase or transportation of marijuana accessories and one ounce or less of marijuana by persons twenty- one (21) years of age and older; WHEREAS, Amendment 64 allows possessing, growing, processing, or transporting no more than six (6) marijuana plants, with three (3) or fewer being mature, flowering plants, and possession of the marijuana produced by the plants on the premises where the plants were grown, provided that the growing takes place in an enclosed, locked space, is not conducted openly or publicly, and is not made available for sale; WHEREAS, Amendment 64 allows local governments to prohibit the possession of marijuana and marijuana accessories by persons under the age of twenty-one (21) years and to prohibit the open and public consumption of marijuana by persons of any age; and WHEREAS, it is the desire of the Fraser Town Board to pass legislation reconciling the Fraser Municipal Code to the new state law. (Note: additions are shown in bold and Underlined print; deletions are shown as strikethreugI4 print. NOW, THEREFORE, THE TOWN BOARD OF THE TOWN OF FRASER, COLORADO, ORDAINS: Chapter 10 Article 3 of the Fraser Municipal Code is hereby amended to read as follows: Sec. 10-3-10.Definitions. (a) As used in this ArtiGle, the teFm manju— all parts Gf the plant plant, its seeds E)F its resin. The term n4ar#uana shall RGt iRGIude fiber Ked6lGed from the stalks_-, Oil OF Gake iRGapable E)f germinatiOR, if these items exist apart from -F-y etheF itern defined as (a) MARIJUANA: All parts of the plant of the genus cannabis whether growing or not the seeds the_reof, the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, mixture or preparation of the plant its seeds or its resin including marijuana concentrate, but the term does not include industrial hemp, nor does it include fiber produced from the stalks, oil, or cake made from the seeds of the plant, sterilized seed of the plant which is incapable of germination or the weight of any other ingredient combined with marijuana to prepare topical or oral administrations food drink, or other product. (b) MARIJUANA PRODUCTS: Concentrated marijuana products and marijuana products that are comprised of marijuana and other ingredients and are intended for use or consumption, such as, but not limited to edible products ointments and tinctures (c) MARIJUANA ACCESSORIES: Equipment, products, or materials of any kind which are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting composting, manufacturing compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing vaporizing, or containing mariivana, or for ingesting, inhaling, or otherwise introducing mariivana into the human body. (d) OPENLY OR PUBLICLY: The consumption or growing of mariivana in a place commonly or usually open to or accessible by the general public, or to which members of the general public may resort, including without limitation public ways, streets sidewalks, alleys, bicycle paths, trails -golf courses public buildings, parks open spaces, parking lots, shopping centers places of business usually open to the general public, and automobiles or other vehicles in or upon any such place or places, but excluding the interior or enclosed yard area of private homes residences condominiums or apartments. For purposes of this Section "openly or publicly" expressly includes the consumption or growing of marijuana in any place not used for residential purposes where individuals gather to consume or prow marijuana, regardless of whether such place calls itself private or public or charges an admission or membership fee (e) As used in this Article, unless the context otherwise requires, drug paraphernalia means all equipment, products and materials of any kind which are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of the laws of the State. Drug paraphernalia includes, but is not limited to: (1) Testing equipment used or intended for use or designed for use in identifying or in analyzing the strength, effectiveness or purity of controlled substances under circumstances in violation of the laws of the State. (2) Scales and balances used, intended for use or designed for use in weighing or measuring controlled substances. (3) Separation gins and sifters used, intended for use or designed for use in removing twigs and seeds from or in otherwise cleaning or refining marijuana. (4) Blenders, bowls, containers, spoons and mixing devices used, intended for use or designed for use in compounding controlled substances. (5) Capsules, balloons, envelopes and other containers used, intended for use or designed for use in packaging small quantities of controlled substances. (6) Containers and other objects used, intended for use or designed for use in storing or concealing controlled substances. (7) Objects used, intended for use or designed for use in ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish or hashish oil into the human body, such as: a. Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls; b. Water pipes; c. Carburetion tubes and devices; d. Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette that has become too small or too short to be held in the hand; e. Miniature cocaine spoons and cocaine vials; f. Chamber pipes; g. Carburetor pipes; h. Electric pipes; i. Air-driven pipes; j. Chillums; k. Bongs; or I. Ice pipes or chillers. Sec. 10-3-20.Determination; considerations. (a) In determining whether an object is drug paraphernalia, a court, in its discretion, may consider, in addition to all other relevant factors, the following: (1) Statements by an owner or by anyone in control of the object concerning its use; (2) The proximity of the object to controlled substances; (3) The existence of any residue of controlled substances on the object; (4) Direct or circumstantial evidence of the knowledge of an owner or of anyone in control of the object, or evidence that such person reasonably should know that the object could be used to facilitate the use of a controlled substance in violation of state statutes; (5) Instructions, oral or written, provided with the object concerning its use; (6) Descriptive materials accompanying the object which explain or depict its use; (7) The existence and scope of legal uses for the object in the community; and (8) Expert testimony concerning its use. (b) In addition to any other competent evidence identifying a substance as marijuana: (1) Results of the field test known as the "duquenois-levine reagent system" shall be admissible in evidence and shall be prima facie evidence of whether or not the substance tested was marijuana. (2) The qualitative result of a marijuana test performed by a Drug Recognition Expert (DRE), certified as such, or by persons otherwise certified under a "drugs that impair" certification, shall be admissible at the trial of any person charged with a violation of Subsection 10-3-30(b) below, and shall be prima facie evidence of whether the person charged has consumed, ingested or used marijuana. (3) Laboratory tests of marijuana shall be admitted in evidence pursuant to Section 16-3- 309, C.R.S. Sec. 10-3-30.Unlawful possession or use of marijuana; penalties. (a) It shall be unlawful for any person to possess eF openly display ene (1) E)WnGe eF less f n}arijuana anywhere wig iR the To use, display, purchase, transport, possess or transfer more than one ounce of mariivana. (b) it shall be unlawful for aRY peFsen tE) GGRGUM8, ingest or use any amount Gf rnaFijuaRa aRywher° in the Town. It is unlawful for any person to possess prow, process or transport more than six (6) marijuana plants with three (3) or fewer being mature flowering plants. A person may possess the marijuana produced by these plants provided that such possession is limited to the premises where the plants were -grown and further provided that the growing takes place in an enclosed locked space and is not conducted openly or publicly or made available for sale (c) below.punished as proved for in SubseGt*OR (d) It is unlawful for any person under the age of twenty-one (21) to use display, purchase transport possess or transfer marijuana marijuana products or mariivana accessories anywhere within the Town (d) It is unlawful for a person twenty-one (21) years of age or older to use, display, purchase, transport, possess or transfer marijuana mariivana products or marijuana accessories for any reason other than personal use (e) It is unlawful for any person twenty-one (21) years of age or older to purchase on behalf of, transfer to, or otherwise assist a person under the aqe of twenty-one (21) in obtaining marijuana, marijuana products or marijuana accessories (f) It is unlawful for any person to openly or publicly consume or grow marijuana or to consume marijuana in a manner that endangers others (g) Any person found guilty of a violation of this Section shall be punished as follows: `1) For a yinln}inn rnn of not more than One (I), n,inro of m'+rii,i +n + and upen GORV*Gfien4heFe 1, -1.—I _8 e fined an amo,,n} as determined by the �A,mininal L erJne net tE) eXGeed one hundred �'�Ts ($1-0. Any person found guilty of a violation of this section shall be punished, upon conviction, by fine in the amount of one hundred dollars ($100.00). (2) For a viola tion r•onnerninn onnc„mn}inn innee}inn or use of any arnpunt of mari:.,aa \l-/ VVI _ he fined an aFnGWnt as determiner) h\/ }he INA,miainal Iudq@ rlE)t tA eXGeed nRe hURdred dollars-($100.00). (0 -307 Part 1, 20 Sec. 10-3-40.Unlawful possession of drug paraphernalia; penalties. (a) A person Genimits PG86eGGiGR of drug paraphernalia if he or she pessesses-dfug parapheFRalia and knows 9F reasonably should kRGW that the dFug paraphernalia G061ld It is unlawful for a person to possess drug paraphernalia if he or she knows or reasonably should know that the drug paraphernalia could be used to facilitate the use of a controlled substance in violation of state statute. Notwithstanding the foregoing, it shall not be a violation of this section for a person twenty-one (21) years of age or older to possess, use, display, purchase or transport marijuana accessories, as that term is defined in Code $ 10-3-10. (b) theFeof, the v*elater shall be flined __-.4 as deteFmiRed by the MuniGipal judge, RE) The penalty for a violation of this section; shall be a fine in an amount not to exceed one hundred dollars ($100.00). Sec. 10-3-50.Affirmative defense. It shall be an affirmative defense to a prosecution under this Article that a person is in possession of a valid registry identification card authorizing the medicinal use of marijuana issued by the State Health Agency, so long as the possession or use does not occur in a public place. SEVERABILITY. If any section, subsection, sentence, clause or phrase of this Ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this Ordinance. The Town of Fraser hereby declares that it would have adopted this Ordinance, and each section, subsection, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases thereof be declared invalid or unconstitutional. EMERGENCY DECLARATION The Town Board of the Town of Fraser hereby finds, determines, and declares that an emergency exists and that this ordinance is necessary for the immediate preservation of public property, health, welfare, peace or safety. The Town Board further determines that the adoption of this ordinance as an emergency ordinance is in the best interest of the citizens of the Town of Fraser. PUBLICATION. This Ordinance shall be published by title only. READ, PASSED, ADOPTED AND ORDERED PUBLISHED BY THE BOARD OF TRUSTEES AND SIGNED THIS 20"DAY of FEBRUARY, 2013. Votes in favor: Co BOARD OF TRUSTEES OF THE Votes opposed: I TOWN OF FF7, CO RADO Votes abstained: BY: Peggy S , Mayor . .,. T T: ( SEAL) .` Lu Berger, Town ler Published in the Middle Park Times on February 28, 2013.