20-09 OrdinanceRECORD OF ORDINANCES
Da~~ton Lc~>al Blank [nc. Porm~~ UU~3
20-09
Ordinance No. Passed , 20
AN ORDINANCE AMENDING CHAPTER 111 (ALCOHOLIC
BEVERAGES) OF THE DUBLIN CODIFIED ORDINANCES
SPECIFICALLY SECTION 111.05 ENTITLED "SALES TO AND
USE BY UNDERAGE PERSONS; SECURING PUBLIC
ACCOMMODATIONS" TO IMPOSE STRICTER REQUIREMENTS
TO DISCOURAGE ADULTS FROM PERMITTI\TG UNDERAGE
CONSUMPTION OF ALCOHOL AND SECTION 111.99 ENTITLED
"PENALTY" TO ENACT NEW AFFIRMATIVE DEFENSES
WHEREAS, Dublin City Council ("Council") recognizes the dangers of consumption
of alcoholic beverages by minors; and
WHEREAS, Council supports and encourages measures to restrict youth access to
alcoholic beverages; and
WHEREAS, the City of Dublin ("City") has previously enacted legislation
prohibiting an adult from permitting gatherings in which underage consumption is
occurring; and
WHEREAS, the current laws and regulations are difficult to enforce due to the
"knowingly" mental state required for a conviction; and
WHEREAS, the City desires to enact penalties for adults who, because of a
substantial lapse of due care, fail to perceive or avoid risks that exist with regard to
underage consumption of alcohol; and
WHEREAS, at the same time, however, the City wants to ensure that responsible
adults are not unfairly penalized; and
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin,
Union, Delaware and Franklin Counties, State of Ohio, ~ of the elected members
concurring:
Section 1. That existing section 111.05 of the Codified Ordinances of the City of
Dublin be amended as follows:
111.05 SALES TO AND USE BY UNDERAGE PERSONS; SECURING
PUBLIC ACCOMMODATIONS.
(A) Except as otherwise provided in this chapter or R.C. Chapter 4301, no
person shall sell beer or intoxicating liquor to an underage person, shall buy beer or
intoxicating liquor for an underage person, or shall furnish it to an underage person,
unless given by a physician in the regular line of the physician's practice or given for
established religious purposes, or unless the underage person is supervised by a parent,
spouse who is not an underage person or legal guardian. In proceedings before the
liquor control commission, no permit holder, or the employee or agent of a permit
holder, charged with a violation of this division shall be charged, for the same offense,
with a violation of R.C. ~ 4301.22(A).
(B) No person who is the owner or occupant of any public or private place shall
k~e~~gl-y negligently allow any underage person to remain in or on the place while
possessing or consuming beer or intoxicating liquor, unless the intoxicating liquor or
beer is given to the person possessing or consuming it by that person's parent, spouse
who is not an underage person or legal guardian and the parent, spouse who is not an
underage person, or legal guardian is present at the time of the person's possession or
consumption of the beer or intoxicating liquor. An owner of a public or private place
is not liable for acts or omissions in violation of this division that are committed by a
lessee of that place, unless the owner authorizes or acquiesces in the lessee's acts or
omissions.
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(C) No person shall engage or use accommodations at a hotel, inn, cabin,
campground or restaurant when the person knows or ~ should have reason to know
either of the following:
(1) That beer or intoxicating liquor will be consumed by an underage
person on the premises of the accommodations that the person engages or uses,
unless the person engaging or using the accommodations is the spouse of the
underage person and who is not an underage person, or is the parent or legal
guardian of all of the underage persons, who consume beer or intoxicating
liquor on the premises and that person is on the premises at all times when beer
or intoxicating liquor is being consumed by an underage person;
(2) That a drug of abuse will be consumed on the premises of the
accommodations by any person, except a person who obtained the drug of
abuse pursuant to a prescription issued by a licensed health professional
authorized to prescribe drugs and has the drug of abuse in the original
container in which it was dispensed to the person.
(D) (1) No person is required to permit the engagement of accommodations at
any hotel, inn, cabin or campground by an underage person or for an underage person,
if the person engaging the accommodations knows or leas should have reason to know
that the underage person is intoxicated, or that the underage person possesses any beer
or intoxicating liquor and is not supervised by a parent, spouse who is not an underage
person, or legal guardian who is or will be present at all times when the beer or
intoxicating liquor is being consumed by the underage person.
(2) No underage person shall knowingly engage or attempt to engage
accommodations at any hotel, inn, cabin or campground by presenting
identification that falsely indicates that the underage person is 21 years of age or
older for the purpose of violating this section.
(E) (1) No underage person shall knowingly order, pay for, share the cost of,
attempt to purchase, possess, or consume any beer or intoxicating liquor in any public
or private place. INTO underage person shall knowingly be under the influence of any
beer or intoxicating liquor in any public place. The prohibitions set forth in this
division against an underage person knowingly possessing, consuming, or being under
the influence of any beer or intoxicating liquor shall not apply if the underage person
is supervised by a parent, spouse who is not an underage person, or legal guardian, or
the beer or intoxicating liquor is given by a physician in the regular line of the
physician's practice or given for established religious purposes.
(2) (a) If a person is charged with violating division (E)(1) of this
section in a complaint filed under R.C. § 2151.27, the court may order the
child into a diversion program specified by the court and hold the complaint in
abeyance pending successful completion of the diversion program. A child is
ineligible to enter into a diversion program under this division if the child
previously has been diverted pursuant to this division. If the child completes
the diversion program to the satisfaction of the court, the court shall dismiss
the complaint and order the child's record in the case sealed under R.C. §§
2151.356 through 2151.358. If the child fails to satisfactorily complete the
diversion program, the court shall proceed with the complaint.
(b) If a person is charged in a criminal complaint with violating division
(E)(1) of this section, R.C. ~ 2935.36 shall apply to the offense, except that a
person is ineligible for diversion under that section if the person previously
has been diverted pursuant to divisions (E)(2)(a) or (E)(2)(b) of this section.
If the person completes the diversion program to the satisfaction of the court,
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the court shall dismiss the complaint and order the record in the case sealed
under R.C. ~ 2953.52. If the person fails to satisfactorily complete the
diversion program, the court shall proceed with the complaint.
(F) No parent, spouse who is not an underage person or legal guardian of a minor
shall knegly negligently permit the minor to violate this section or § 111.06.
(G) The operator of any hotel, inn, cabin or campground shall make the
provisions of this section available in writing to any person engaging or using
accommodations at the hotel, inn, cabin or campground.
(H) As used in this section:
(1) DRUG OF ABUSE has the same meaning as in R.C. 5 3719.011.
(2) HOTEL has the same meaning as in R.C. ~ 3731.01.
(3) LICENSED HEALTH PROFESSIONAL AUTHORIZED TO
PRESCRIBE DRUGS and PRESCRIPTION have the same meaning as in
R.C. 5 4729.01.
(4) MINOR means a person under the age of 18 years.
(5) UNDERAGE PERSON means a person under the age of 21 years.
Section 2. That existing section 111.99 of the Codified Ordinances of the City of
Dublin be amended as follows:
111.99 PENALTY.
(A) Whoever violates ~ S 111.02, 111.04, or 111.09 is guilty of a minor
misdemeanor. (R.C. ~ 4301.99(A)) ('80 Code, ~~ 529.05(b), 529.08(b), 529.07(d))
(B) (1) Whoever violates § 111.05 (A) is guilty of a misdemeanor, shall be
fined not less than $500 and not more than 51000, and, in addition to the fine, maybe
imprisoned for a definite teen of not more than six months. (R.C. ~ 4301.99(I))
(2) Whoever violates § 111.05 (B) through (E) is guilty of a misdemeanor
of the first degree. If an offender who violates § 111.05 (E)(1) of this
section was under the age of 18 years at the time of the offense and the
offense occurred while the offender was the operator of or a passenger in a
motor vehicle, the court, in addition to any other penalties it imposes upon
the offender, shall suspend the offender's temporary instruction permit or
probationary driver's license for a period of six months. If the offender is
15 years and 6 months of age or older and has not been issued a temporary
instruction permit or probationary driver's license, the offender shall not be
eligible to be issued such a license or permit for a period of six months. If
the offender has not attained the age of 15 years and 6 months, the offender
shall not be eligible to be issued a temporary instniction permit until the
offender attains the age of 16 years. (R.C. § 4301.99(C)) ('80 Code, ~
529.02(1))
(3) It is an affirmative defense to a charge under S 111.05 (B) and ~ 111.05
(F) that the person chartred with violating the section has taken reasonable
precautionary measures under the circumstances to restrict or prevent
access by underage persons to alcoholic beverages.
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(C) (1) Whoever violates any provision of § 111.06 for which no other penalty
is provided is guilty of a misdemeanor of the first degree.
(2) Whoever violates § 111.06 (A) shall be fined not less than S25 nor more
than $100. The court imposing a fine for a violation of ~ 111.06 (A) may order
that the fine be paid by the performance of public work at a reasonable hourly
rate established by the court. The court shall designate the time within which
the public work shall be completed. (R.C. § 4301.99(E))
(3) (a) Whoever violates § 111.06 (D) is guilty of a misdemeanor of the
first degree. If, in committing a first violation of ~ 111.06 (D), the offender
presented to the permit holder or his employee or agent a false, fictitious or
altered identification card, a false or fictitious driver's license purportedly
issued by any state, or a driver's license issued by any state which has been
altered, the offender is guilty of a misdemeanor of the first degree and shall be
fined not less than $250 and not more than $1,000 and may be sentenced to a
terns of imprisomnent of not more than six months.
(b) On a second violation in which, for the second time, the offender
presented to the permit holder or his employee or agent a false,
fictitious or altered identification card, a false or fictitious driver's
license purportedly issued by any state, or a driver's license issued by
any state which has been altered, the offender is guilty of a
misdemeanor of the first degree and shall be fined not less than S500
nor more than $1,000, and maybe sentenced to a term of imprisonment
of not more than six months. The court also may suspend the
offender's driver's or commercial driver's license or permit or
nonresident operating privilege or deny the offender the opportunity to
be issued a driver's or commercial driver's license for a period not
exceeding 60 days.
(c) On a third or subsequent violation in which, for the third or
subsequent time, the offender presented to the permit holder or his
employee or agent a false, fictitious or altered identification card, a
false or fictitious driver's license purportedly issued by any state, or a
driver's license issued by any state which has been altered, the offender
is guilty of a misdemeanor of the first degree and shall be fined not less
than $500 nor more than $1,000 and may be sentenced to a term of
imprisonment of not more than six months. The court also shall
suspend the offender's driver's or commercial driver's license or permit
or nonresident operating privilege or deny the offender the opportunity
to be issued a driver's or commercial driver's license for a period of 90
days, and the court may order that the suspension or denial remain in
effect until the offender attains the age of 21 years. The court also may
order the offender to perform a determinate number of hours of
community service, with the court determining the actual number of
hours and the nature of the community service the offender shall
perform. (R.C. ~ 4301.99(F))
('80 Code, § 529.021(e))
(D) (1) Whoever violates ~ 111.07 (A)(1) is guilty of a misdemeanor, shall be
fined not less than $500 and not more than $1000, and, in addition to the fine, may be
imprisoned for a definite term of not more than 60 days. (R.C. ~ 4301.99 (H))
(2) Whoever violates ~ 111.07 (A)(1) or (3), (B) or (C) is guilty of a
misdemeanor of the third degree. (R.C. S 430199 (D))
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(3) Whoever violates ~ 111.07 (A)(2) or (D) is guilty of a misdemeanor of
the fourth degree. (R.C. 5 4301.99 (B).
('80 Code, ~ 529.03(c))
(E) Whoever violates § 111.08 is guilty of a misdemeanor of the fourth degree. If
an offender who violates ~ 111.08 was under the age of 18 years at the time of the
offense, the court, in addition to any other penalties it imposes upon the offender, shall
suspend the offender's temporary instruction permit, probationary driver's license or
driver's license for a period of six months. If the offender is 15 years and 6 months of
age or older and has not been issued a temporary instruction permit or probationary
driver's license, the offender shall not be eligible to be issued such a license or permit
for a period of six months. If the offender has not attained the age of 15 years and 6
months, the offender shall not be eligible to be issued a temporary instruction permit
until the offender attains the age of 16 years.
Section 3. This Ordinance shall take effect and be in force from and after the earliest
date permitted by law.
Passed this ~`~ day of , 2009.
n ..
Mayor -Presiding Officer
ATTEST:
Clerk of Council
SCH~TTENSTE I N
ZOX~4;DUNN
NfEMORAIVDUM
TO: Dublin City Council
Terry Foegler, City Manager
FROM: Stephen J. Smith, Law Director
Stephen J. Smith, Jr., Assistant Law Director
DATE: April 16, 2009
RE: Ordinance No. 20-09
Amending Chapter 111 Regarding Alcoholic Beverages
INTRODUCTION
In recent years, there has been a movement across the United States to address the issue of
underage drinking and more specifically targeting the adults who provide the alcohol to those
below the legal drinking age. This effort is being led locally by the Drug-Free Action Alliance
who developed the now familiar "Parents Who Host, Lose The Most" campaign and at the state
level by the Coalition to Amend Ohio's Social Host Law. Both of these programs are designed
to educate on the health risks associated with underage drinking and legal consequences for
adults who host parties in which underage drinking occurs.
ANALYSIS:
The City of Dublin ("Dublin's Codified Ordinances ("Code's currently prohibits any person
from `knowingly allow[ing] any underage person to remain in or on the place while possessing
or consuming beer or intoxicating liquor." This prohibition is nearly identical to what currently
exists under State law.l The difficulty with enforcing this prohibition is that the mental state of
`knowingly" is the highest standard to prove. In order to prove `knowingly" under the Dublin
Code, it must be shown that a person `~s aware that his conduct will probably cause a certain
result or will probably be of a certain nature." 2 The difficulty with this is that it is virtually
impossible to prove a violation of this section when a person is asserting an `ignorance defense."
The proposed changes to the Code would lower the mental state required to a negligent standard.
Under the Dublin Code, a person acts negligently if, because of a "substantial lapse from due
care" a person "fails to perceive or avoid a risk that his conduct may cause a certain result or
1 See Ohio Revised Code §4301.69.
z Dublin Codified Ordinances §130.08(B}.
Memo re. Ordinance 20-09 -Code Amendment -Alcoholic Beverages
April 16, 2009
Page 2 of 2
may be of a certain nature."~ While lowering the mental state would make a violation easier to
prove, the proposed changes also include an affirmative defense for parents who take reasonable
steps to restrict access to alcoholic beverages by underage persons.
CONCLUSION:
The proposed changes could be lawfully implemented under Dublin's police powers.
ww.SZO.com
Columbus
Cleveland
Cincinnati
s Dublin Codified Ordinances §130.08{D}.
(H1486917.1 }
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