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OFFICE OF THE C fT Y C lERf r

20irSEP 22*PH 6:01 CHY OF OAKLANDO N E F R A N K O G A W A P L A Z A 2 ' F L O O R O A K L A N D , C A L I F O R N I A 94 61 2I g n a c i o De La F ue nt e (510) 238-7005C i t y C o u n c i l M e m b e r , D i s t r ic t 5 FAX:(510) 238-6129L a r r y R e i dC i t y C o u n c i l P r e s i d e n t

T O : Oakland City CouncilF R O M : CouncilniemberDe La Fuenteand Council PresidentLarry ReidD A T E : 10/4/11R E: An Ordinance (1) Adding Chapter 9.58 To The Oakland

Municipal Code (OMC) Prohibiting Loitering In Public For ThePurposeOf Engaging In Illegal Drug Activity And (2) Amending- O M C Section1.28.020 To Add Violations Of O M C Chapter 9.58To The List Of Infraction Offenses

CoUeagues-We submit to you this memorandum and accompanying ordinance and recommend itsadoption. Ordinance No. 12470 passed by the City Council on February 25, 2003expired by its own terms (sunsetted) on March 4, 2004 contained similar provisions.Section 9.58.040 of the 2003 ordinance, stated 'This chapter shall expire on March 4,2004 unless a vote to either extend or make his chapter permanent has been passed by amajority vote of the City Council."In December of 2008, former Chief of Police Tucker and former City Attorney JohnRusso proposed the introduction of an updated and revised ordinance prohibitingloitering inpublic for the purpose of engaging in illegal drug activity but the proposalwas withdrawn at the committee level. This proposed ordinance is identical to the 2008proposal.As stated in the 2008 report:

This propos ed ord inance identifies and prohibits the various "mar kers "associated w ith street corner drug dealing such as: acting as a "lookout, " summoningprospective buyers by word, signal or action, exchanging objects, packages and/or

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currency, possession of narcotic paraphernalia and being under the influence ofnarcotics.Oakland has for many years had an ongoing problem with individuals roitering in publicand engaging in open air drug dealing. In 2010, Oakland Police reported 2,481 cases ofdrug possession and sales, the three year average is 2,189 cases.A search on the Oakland Police Department Crime Watch database shows the followingreported narcotics related offenses for the past 90 days in each council district:District1 District2 District3 District4 District5 District 6 District 746 32 159 22 60 73 98Violations of the proposed ordinance shall be punishable as an infraction or amisdemeanor per Oakland Municipal Code Chapter 1.28.A supplemental report will be included in the supplemental agenda with additionalinformation and statistical informationto support this request..Respectfully submitted.

Council President Larry ReidPrepared by Ray Leon

Council President Pro TemporeIgnacio De L a FuentePrepared byClaudia Burgos

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FILED0F.flCE OF THE CtT ^ ClER^o KL N ) OAKLAND CITY COUNCILZBIISEP22 PM 6:07 ^ ^ORDINANCE N O . C . M . S .

Approved as to Form and Legalit

C i ty A t to r

DRAFTI N T R O D U C E D B Y P R E S I D E N T L A R R Y R E ID A N D P R O - T E M P O R E D E L A F U E N T H

AN ORDINANCE (1) ADDING CHAPTER 9.58 TO THEOAKLAND MUNICIPAL CODE (OMC) PROHIBITINGLOITERING IN PUBLIC FOR THE PURPOSE OFENGAGING IN ILLEGAL DRUG ACTIVITY AND (2)AMENDING OMC SECTION 1.28.020 TO ADDVIOLATIONS OF OMC CHA PTER 9.58 TO THE LIST OFINFRACTIONOFFENSES

W H E R E A S , there has been a continual problem in the City of Oakland withindividuals toitering in public for the purpose of engaging in drug related activities, notlimited to the sales or purchase of il legal drugs, especially in front of and around alcoholbeverage sale establishm ents; andW H E R E A S , the City finds that perso ns who loiter or linger for the aforementionedpurpose jeopard ize the pub lic's safety and welfare, and increase fear am ong thecomm unity, and s uch loitering activity is a factor wh ich not only de pre ciates the value ofproperty upon which such activity occurs, but also dep reciates the valu e of adjacent andsurrounding properties, and adversely affects the security and well being of residents,the city's image, business climate, potential development, and housing costs; andW H E R E A S , state law contained in C alifornia Health and Sa fety C od e section11530 currently prohibits loitering for the purpose of engaging in drug related activities,violations thereof being a misdemeanor; andW H E R E A S , an app ellate court in C alifornia has upheld the constitutionality ofCalifornia Health and S afety C od e section 11530 et seq. ; andW H E R E A S , C alifornia Health and Safety C od e section 11538 specif ical lyprovides for local legislation in this ar ea ; andW H E R E A S , the C ity believes that prescribing the lower penalty of infractionthrough the O akland Mun icipal C od e for the aforementioned offense would provide anaddit ional and neces sary tool to effectively ad dr ess the stated public n uisan ce inOakland than the misdemeanor trial process would; andW H E R E A S , the City Counci l , previously enacted Ordinance No. 12470 C.M.S . onFebruary 25, 2003, which was a prohibition on loitering for the purpose of il legal drugactivity; and

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W H E R E A S , Ordinance No. 12470 C.M.S . expired by its own terms (sunsetted)effective Ma rch 4, 20 04; andW H E R E A S , the City Counci l , as the legislative body of the C ity, has an o bligationpursuant to the City Charter and the Oakland Policy Plan to protect O akland 's physicalenvironment, conserve existing neighborhoods and protect the health, safety, andwelfare of the citizens of Oakland; andW H E R E A S , in order to further the ability of the Oakland Police Department toprotect the quality of life and safety of the residents of the C ity of O akla nd , the CityCounci l finds that it is in the City's best interest to re-enact the anti-drug loiteringordinance, now, therefore

THE COUNCIL OF THE CITY OF OAKLAND DOES ORDAIN AS FOLLOWS:Sect ion 1. That the C ity C ou ncil finds and determ ines the forego ing recitals to betrue and correct and hereby makes them a part of this Ordinance.Sect ion 2. That the City Council finds it is appropriate to make violations of thisOrdinance an infraction, rather than'a misdemeanor as set forth in similar state law; andSect ion 3. C hapter 9.58 is add ed to Tit le 9 -- Pu blic Peace , W elfare, Morals andW elfare of the O akland M unicipal Co de , to read a s follows:

Chapter 9.58 LOITERING FOR THE PURPOSE OF ENGAGING IN ILLEGALDRUG ACTIVITY

9.58.010 Definitions.A s use d in this C hap ter, the following terms have the followingmeanings:A . "Loiter" m ean s to de lay or linger without a lawful purposefor being on the property and for the pur pose of committing acrime, or attempting to commit a chm e, as opportunity may bediscovered.B. "P ublic place" means an area open to the public orexposed to public view and includes streets, sidewa lks, bhdg es,alleys, plaza s, parks, driveways, parking lots, automobiles andbicycles, whether mov ing or not, and buildings open to thegenera! public, including those which serve food or dhnk, or

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provide entertainment, and the doonways and entrances tobuildings or dwellings and the grounds enclosing them.

9.58.020 Loitering for purposes of illegal drug activity.A . It is unlav\rfu! for any per son to loiter in any pub lic p lace ina manner and under circumstances exhibiting the purpose or theintent to commit a drug-related offense specified in Chapter 6(commencing with Section 11350) and C hapter 6.5 (commencingwith Section 11400) of the California Health and Safety Code .B. Among circumstances that may be considered indetermining whether a person has the requisite purpose or intentto engage in drug-related activity are that the person:

1. A cts as a "lookout." Fo r the purp oses of thischapter the term lookout means one who uses signals orlanguage to warn others that law enforcement officers arein the area .2. Transfers s mall objects or pa ckag es for currency inany fashion, including a furtive fashion.3. Tries to conceal himself or herself or any objectthat reasonably could be involved in an unlawful drug-related activity.4. Uses signals or language indicative of summoningpurchase rs of i l legal drugs.5. Repeatedly beckons to, stops, attempts to stop, orengages in conversations with passersby, whether onfoot, bicycle, or in motor vehicle, indicative of summoningpurchasers of il legal drugs.6. Repeatedly passes to or receives from passe rsby,whether on foot, bicycle, or in a motor vehicle, money orsmall objects.

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7. Is under the influence of a controlled substa nce orpossesses narcotic or drug paraphernalia. For thepurpose of this paragraph, "narcotic or drugparaphernalia" means any device, contrivance,instrument, or apparatus designed or marketed for the useof smoking, injecting, ingesting, or consuming marijuana,hashish, P C P , or any controlled substance, including, butnot limited to, roach clips, cigarette papers, and rollersdesigned or marketed for use in smoking or consum ing acontrol led substance.8. Has been convicted in any court within this state,within five years prior to the conviction under this section,of any violation involving the use, possession, or sa le ofany of the substances referred to in Chapter 6(commencing with Section 11350) of C hapter 6.5(commencing with Section 11400) of the California Healthand Safety Co de , or has been convicted of any violation ofthose provisions or substantially similar laws of anypolitical su bd ivision of this state or any other state.9. Is currently subject to any order prohibiting his orher presence in any high drug activity geographic area.10. Has engaged, within six months prior to the date ofviolation of this se ction, in any behavior d esc ribed in thissubdivision, with the exception of subsection B.8., or inother behavior indicative of illegal drug-related activity.

C . The list of circumstances set forth in su bd ivision B. of thissection is not exclusive. The circumstances set forth inSubsection B. should be considered particularly salient if theyoccur in an area that is known for unlawful drug use andtrafficking, or if they occur on or in prem ises that have beenreported to law enforcement as a place suspected of unlawful

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drug act i v i t y . Any o ther re levant c i rcumstances may becons ider ed in determin ing whether a person has the req u is iteintent. Moreover , no one c i rcumstance or combinat ion o fci rcumstances is in i tsel f determinat ive of intent. Intent must bedeterm ined bas ed on an eva luat ion o f the par t i cu la rc i rcumstance s o f each case .D. N o of f icer sha l l be author ized to issu e a ci tat ion for av io lat ion of th is Chapter until that of f i cer has rece ived fo rmalt ra in ing on the ord inance f rom the Oak land Po l i ce Depar tment .

9.58.030 Penalty - Wlisdemeanor or Infraction.Vio la t ion o f Sect ion 9 .58 .020 is pun ishab le e i ther as a misdemeanor asprov ided in Sect ion 1 .28 .010 o f the Oak land Munic ipa l C o d e , oral ternat ively, as an inf ract ion as provided in Sect ion 1.28.020 of theO a k l a n d M u n i c i p a l C o d e .S e c t i o n 4. Severab i l i t y

If any sect ion , sub sect ion , para graph , c laus e, phr ase , o r word in thisordinance is declared inval id or unconst i tut ional by any court with jur isdict ion to makesuch dec is io n , sa id dec is ion sha l l not a f fec t the remain ing par ts o f th is o rd inance. Th eC i ty Co unc i l he reby fi nds and d ec la res that it wou ld have en acte d th is o rd inance withoutthat sec t i on , pa rag ra ph , c lau se , ph rase , or wo rd .

S e c t i o n 5. O ak lan d Munic ipa l C od e C hapter 1 .28 is am end ed to add thefol lowing subsection to the l ist of infract ion offenses:

1.2 8.02 0.A .2. / . Se ct ion 9.58. - Loi tenng F or the P ur pos e of I llegal D rugActivi ty.

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w r ri: n n n n R : i. n : : n r ; ;- 2 ^ >) r E n n 5 i ;; n - ; n r n r; n | 6

S ect ion 6. This O rdinance shall become effective immediately on final adoptionif it receives six or more affirmative votes on final adoption as provided by Section 216 ofthe City Charter; othenA'ise it shall become effective upon the seventh day after finaladoption.IN C O U N C I L , O A K L A N D , C A L I F O R N I A , 200 PASSED BY THE FOLLOWING VOTE:A Y E S - B R O O K S , B R U N N E R , K A P L A N , K E R N I G H A N , N A D E L , Q U A N , R E I D , A N DP R E S I D E N T D E L A F U E N T EN O E S -A B S E N T -A B S T E N T I O N -

A T T E S T : L A T O N D A S I M M O N SCity Clerk and Clerk of the Councilof the C ity of O aklan d, C aliforniaD A T E O F A T T E S T A T I O N :

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F I L E DO P f l C E Of THE c n > C t E R ^O A K L ^ N D2011 SEP 22 PMS^Of

A N O R D I N A N C E A D D I N G C H A P T E R 9.58 TO THEO A K L A N D M U N I C I P A L C O D E (O IWC) PROHIBIT INGL O I T E R I N G IN P U B L I C F O R T H E P U R P O S E O FE N G A G I N G I N I L L E G A L D R U G A C T I V I T Y A N DA M E N D I N G O M C S E C T I O N 1.28.020 T O A D DV I O L A T I O N S O F O M C C H A P T E R 9.58 TO THE L IST OFI N F R A C T I O N O F F E N S E S

N O T I C E A N D D I G E S T

This Ordinance amends Oakland Municipal Code Chapter 9.58 andestablishes a prohibition on loitering in any public place in the City ofOakland for the purpose of conducting or assisting in illegal drug sales,purchases, and related activity, punishable as an infraction.

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