Chapter 9.16 OFFENSES AGAINST PUBLIC DECENCY

B. “Known prostitute or panderer” means a person who, within one year previous to the date of arrest for prostitution, has within the knowledge of the arresting officer been convicted of an offense involving prostitution.

C. 1. “Lewd act” means public:

a. Exposure of one’s genitals or female breasts; or

b. Touching, caressing or fondling of the genitals or female breasts; or

c. Urination or defecation in a place other than a wash-room or toilet room; or

d. Masturbation; or

e. Sexual intercourse.

2. Artistic or dramatic performances in a theater or museum shall not be deemed to be within the definition set out in subsection (C)(1) of this section. Among circumstances which are to be considered in determining whether a performance is artistic or dramatic and thereby excluded from the definition of a lewd act are whether the work, taken as a whole:

a. Appeals to the prurient interest; or

b. Depicts or describes, in a patently offensive way, sexual conduct constituting a lewd act; or

c. Lacks serious literary, artistic, political or scientific value.

3. “Theater,” as used in subsection (C)(2) of this section, does not include any premises wherein alcoholic beverages are sold.

D. “Public” or “public display” means easily visible from a public thoroughfare or from the property of others, or in a public place in a manner so obtrusive as to make it difficult for an unwilling person to avoid exposure. (Ord. 1558 § 1, 1980; prior code § 6.03.010)

9.16.020 Lewd acts.

A. Every person who intentionally performs any lewd act in a public place or at a place and under circumstances where such act could be observed by any member of the public, is guilty of a misdemeanor.

B. The owner, manager or operator of premises open to the public wherein alcoholic beverages are sold, served or consumed is guilty of a gross misdemeanor if he intentionally permits or causes any lewd act on his premises. (Ord. 1558 § 1, 1980; prior code § 6.03.020)

9.16.025 Lesser urination in public.

A person is guilty of lesser urination in public if the person engages in acts manifesting the crime of lewd acts (BMC 9.16.020), but there are mitigating circumstances explaining the person’s actions, but which do not constitute a full legal defense to their actions. A violation of this section shall be a civil infraction and shall subject the violator to a fine of up to $500.00, plus any statutory or local assessments and costs. (Ord. 2846 § 2 (Exh. A), 2014)

9.16.030 Prostitution.

A. Every person who engages or agrees or offers to engage in sexual conduct with another person in return for a fee is guilty of a misdemeanor.

B. This section shall not apply to sexual conduct engaged in as part of any stage performance, play or other entertainment open to members of the public.

C. For purposes of this section, “sexual conduct” means “sexual intercourse” as defined in RCW 9A.44.010(1) or “sexual contact” as defined in RCW 9A.44.100(2).

D. In any prosecution for prostitution, it is an affirmative defense that the actor committed the offense as a result of being a victim of trafficking, RCW 9A.40.100, promoting prostitution in the first degree, RCW 9A.88.070, or trafficking in persons under the Trafficking Victims Protection Act of 2000, 22 U.S.C. Section 7101 et seq. Documentation that the actor is named as a current victim in an information or the investigative records upon which a conviction is obtained for trafficking, promoting prostitution in the first degree, or trafficking in persons shall create a presumption in any proceedings subsequent to arrest that the person’s participation in prostitution was a result of having been a victim of trafficking, promoting prostitution in the first degree, or trafficking in persons. (Ord. 2998 § 1 (Exh. A), 2023; Ord. 1558 § 1, 1980; prior code § 6.03.030)

9.16.040 Permitting prostitution.

A person is guilty of the misdemeanor of permitting prostitution if, having possession or control of premises which they know or should have known are being used for prostitution purposes, they fail without lawful excuse to make reasonable effort to halt or abate such use. (Ord. 2998 § 1 (Exh. A), 2023)

9.16.050 Patronizing a prostitute.

Every person who:

A. Pursuant to a prior understanding, pays a fee to another person as compensation for such person or a third person having engaged in sexual conduct with him; or

B. Pays or agrees to pay a fee to another person pursuant to an understanding that in return therefor such person will engage in sexual conduct with him; or

C. Solicits or requests a known prostitute to engage in sexual conduct with him in return for a fee; is guilty of a misdemeanor. (Ord. 1558 § 1, 1980; prior code § 6.03.050)

9.16.060 Promoting prostitution – Pimping.

Repealed by Ord. 2998. (Ord. 1558 § 1, 1980; prior code § 6.03.060)

9.16.065 Display of sexually explicit materials.

The provisions of RCW 9.68.130, as they exist and as amended, are hereby adopted by reference. In addition to the acts prohibited by RCW 9.68.130, a person is guilty of unlawful display of sexually explicit material if he or she knowingly exhibits such material in any manner, whether on a viewing screen or through any other medium so that the sexually explicit material is easily visible from a public thoroughfare, park or playground, or from one or more family dwelling units. (Ord. 2466 § 1, 2000; Ord. 2453 § 1, 2000)

Article II. Drugs and Other Controlled Substances

9.16.070 State statutes adopted – Controlled substances.

The following criminal provisions of the statutes contained in the RCW as they relate to drugs, prescription or otherwise, and other controlled substances, defining crimes and prescribing penalties, are adopted by this reference and with the imposition of an element that the crime must have been done knowingly:

Chapters 69.38, 69.40, 69.41 and 69.50 RCW, as well as the WACs incorporated by reference in those statutes.

If any of the state statutes hereby adopted by reference are amended by the state legislature or the people, including repeal and substitution of other language or recodifications, then such amendments are further incorporated by reference in this section and the city code codification. (Ord. 2998 § 1 (Exh. A), 2023; Ord. 2846 § 2 (Exh. A), 2014; Ord. 1923 § 1, 1989; Ord. 1558 § 1, 1980; prior code § 6.09.010)

9.16.080 Possession of unlawful substances.

A. Possession of a Controlled Substance. Any person convicted under this article of violation of any of the provisions adopted in BMC 9.16.070 regarding poisons or scheduled substances, as adopted and amended, where the acts alleged were done knowingly, is guilty of possession of a controlled substance, which is a gross misdemeanor with a maximum fine of $1,000. A first or second offense will carry a maximum of 180 days of incarceration, and additional offenses will carry a maximum up to 364 days of incarceration.

B. Possession of a Legend Drug. Any person convicted under this article of violation of any of the provisions adopted in BMC 9.16.070 regarding legend drugs, as adopted and amended, where the acts alleged were done knowingly, is guilty of possession of a legend drug, which is a misdemeanor. (Ord. 2998 § 1 (Exh. A), 2023; Ord. 2846 § 2 (Exh. A), 2014; Ord. 2363 § 1, 1998; Ord. 1558 § 1, 1980; prior code § 6.09.020)

9.16.085 Possession of drug paraphernalia.

A. It is a misdemeanor for any person to use, or to possess with intent to use, drug paraphernalia.

B. “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. It includes but is not limited to the definitions of drug paraphernalia listed in RCW 69.50.102, adopted herein by reference. (Ord. 2814 § 2 (Exh. A), 2012)

9.16.090 Marijuana – Definitions.

A. “Legal amount” in reference to marijuana is defined as not more than one ounce of marijuana, not more than 16 ounces of marijuana-infused product in solid form, or not more than 72 ounces of marijuana-infused product in liquid form.

B. “Marijuana” means all parts of the plant cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.

C. “Marijuana-infused products” means products that contain marijuana or marijuana extracts and are intended for human use. (Ord. 2846 § 2 (Exh. A), 2014; Ord. 2363 § 2, 1998; Ord. 1558 § 1, 1980; prior code § 6.09.030)

9.16.093 Misdemeanor marijuana possession or dealing.

A. Any person knowingly possessing more than the legal amount of marijuana or marijuana-infused products is guilty of a misdemeanor.

B. Any person knowingly possessing marijuana or marijuana-infused products of any amount with the intent to sell and without a valid state license to do so is guilty of a gross misdemeanor.

C. Any person knowingly gifting, trading or selling marijuana or marijuana-infused products to a person under the age of 21 is guilty of a gross misdemeanor.

D. Any person, under the age of 21 knowingly possessing, using, or consuming any amount of marijuana or marijuana-infused products is guilty of a misdemeanor.

E. A person who is convicted of a violation of any provision of this section shall be punished by imprisonment for not less than 24 consecutive hours, and by a fine of not less than $250.00. On a second or subsequent conviction, the fine shall not be less than $500.00. These fines shall be in addition to any other fine or penalty imposed. (Ord. 2998 § 1 (Exh. A), 2023; Ord. 2846 § 2 (Exh. A), 2014)

9.16.095 Marijuana – Civil infractions.

A. Public Marijuana Usage. It is unlawful to knowingly open a package containing marijuana, usable marijuana, or a marijuana-infused product, or consume marijuana, usable marijuana, or a marijuana-infused product in view of the general public. The fine shall be assessed as a Class 2 civil infraction, not including statutory assessments.

B. Public Marijuana Manufacturing. Neither the production nor processing of marijuana or marijuana-infused products pursuant to Chapter 69.50 RCW nor the storage or growing of plants may occur if any portion of such activity can be readily seen by normal unaided vision or readily smelled from a public place or the private property of another housing unit. The fine shall be $500.00 in addition to statutory assessments. (Ord. 2998 § 1 (Exh. A), 2023; Ord. 2846 § 2 (Exh. A), 2014)

9.16.100 Glue sniffing – Unlawful.

Repealed by Ord. 2998. (Ord. 1558 § 1, 1980; prior code § 6.09.040)

9.16.110 Glue sniffing – Violating or aiding or abetting violation.

Repealed by Ord. 2998. (Ord. 1558 § 1, 1980; prior code § 6.09.050)

9.16.120 Unlawful inhalation.

A. It is a misdemeanor for any person to intentionally smell or inhale the fumes of any type of substance as defined in RCW 9.47A.010 or to induce or counsel any other person to do so for recreation, or for the purpose of causing a condition of or inducing symptoms of intoxication, elation, euphoria, dizziness, excitement, irrational behavior, exhilaration, paralysis, stupefaction, or dulling of the senses of the nervous system, or for the purpose of, in any manner, changing, distorting, or disturbing the audio, visual, or mental processes.

B. This section does not apply to the inhalation of any anesthesia for medical or dental purposes administered by regulated and licensed administrators of anesthesia. (Ord. 2998 § 1 (Exh. A), 2023)

9.16.130 Public smoking and vaping prohibited.

A. Definitions.

1. “Public place” means that portion of any property, building, or vehicle used by and open to the public, regardless of whether the property, building, or vehicle is owned in whole or in part by private persons or entities, the city of Blaine, or other public entity, and regardless of whether a fee is charged for admission, and includes a presumptively reasonable minimum distance, as set forth in RCW 70.160.075, of 25 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed area where smoking is prohibited. A public place does not include a private residence unless the private residence is used to provide licensed child care, foster care, adult care, or other similar social service care on the premises. Public places include, but are not limited to: public parks, schools, elevators, public conveyances or transportation facilities, museums, concert halls, theaters, auditoriums, exhibition halls, indoor sports arenas, hospitals, nursing homes, health care facilities or clinics, enclosed shopping centers, retail stores, retail service establishments, financial institutions, educational facilities, ticket areas, public hearing facilities, state legislative chambers and immediately adjacent hallways, public restrooms, libraries, restaurants, waiting areas, lobbies, bars, taverns, bowling alleys, skating rinks, casinos, reception areas, and no less than 75 percent of the sleeping quarters within a hotel or motel that are rented to guests. This chapter is not intended to restrict smoking in private facilities which are occasionally open to the public except upon the occasions when the facility is open to the public.

2. “Place of employment” means any area under the control of a public or private employer which employees are required to pass through during the course of employment, including, but not limited to: entrances and exits to the places of employment, and including a presumptively reasonable minimum distance, as set forth in RCW 70.160.075, of 25 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed area where smoking is prohibited; work areas; restrooms; conference and classrooms; break rooms and cafeterias; and other common areas. A private residence or home-based business, unless used to provide licensed child care, foster care, adult care, or other similar social service care on the premises, is not a place of employment.

3. “Smoke” or “smoking” means the carrying, use or smoking of any kind of lighted, combustible, smoldering, or burning cigarette, pipe, cigar or other lighted smoking equipment including but not limited to tobacco, flavored tobacco products such as shisha, or marijuana.

4. “Vape” or “vaping” means the use of a vapor product, or the act of inhaling/exhaling the vapor or aerosol from a vapor product.

5. “Vapor product” means any: (a) device that employs a battery or other mechanism to heat a solution or substance to produce a vapor or aerosol intended for inhalation; (b) cartridge or container of a solution or substance intended to be used with or in such a device or to refill such a device; or (c) solution or substance intended for use in such a device, including, but not limited to, concentrated nicotine. “Vapor product” includes any electronic cigarettes, electronic nicotine delivery systems, electronic cigars, electronic cigarillos, electronic pipes, vape pens, steam stones, or similar products or devices, as well as any parts that can be used to build such products or devices. “Vapor product” does not include any drug, device, or combination product that has been approved by the United States Food and Drug Administration for legal sales for use as a smoking cessation product or other medical purposes, and is marketed and sold for such approved purpose.

B. Prohibition. No person may smoke or use a vapor product within 25 feet of a public place or any place of employment except for the purpose of tastings within the premises of a vapor product retail outlet pursuant to amendments to RCW Title 70, or except when a reduced distance variance has been specifically granted by the Whatcom County Health Department. Violation of this prohibition is a civil infraction that shall be assessed as a Class 2 civil infraction, not including statutory assessments. (Ord. 2998 § 1 (Exh. A), 2023; Ord. 1558 § 1, 1980; prior code § 6.09.070)

9.16.140 Being under the influence – Violating or aiding or abetting violation.

Repealed by Ord. 2998. (Ord. 1558 § 1, 1980; prior code § 6.09.080)

Article III. Gambling

9.16.150 Definitions.

The definitions as contained in RCW 9.46.020 and WAC Title 230 are adopted by reference. (Ord. 1726 § 1, 1984)

9.16.160 Statutes – Adopted.

The following statutes are adopted by reference:

RCW

9.46.170 9.46.195 9.46.230

9.46.185 9.46.196 9.46.240

9.46.190 9.46.198

(Ord. 1726 § 2, 1984)

9.16.170 Statutes – Amendments.

If any of the state statutes adopted by this article by reference are amended by the State Legislature or the people, including repeal and substitution of other language or recodification, then such amendments are further incorporated by reference into this article. (Ord. 1726 § 3, 1984)

Article IV. Loitering

9.16.200 School stranger loitering.

In furtherance of the city’s duty to protect its most vulnerable members, it is a misdemeanor for any uninvited person to loiter on the property of any public or licensed private school, licensed childcare facility, or licensed institution of higher learning, without lawful purpose, except a person enrolled as a student in such institution, or the parents or guardians of such student, or persons employed or invited by such institution. (Ord. 2998 § 1 (Exh. A), 2023)

9.16.210 Drug traffic loitering.

A person is guilty of the gross misdemeanor of drug traffic loitering if they remain in a public place and intentionally solicit, induce, entice, or procure another to engage in unlawful conduct contrary to Article II of this chapter, or Chapter 69.41, 69.50, or 69.52 RCW. (Ord. 2998 § 1 (Exh. A), 2023)