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TUESDAY. JANUARY 28, 1997 <br /> <br />maintains such common nuisance shall be guilty of a Class 1 <br />misdemeanor, and, for a second or subsequent offense, a Class 6 felony. <br />However, this statute does not provide that the mere presence of a <br />person in such place, without more, constitutes any kind of criminal <br />offense. <br /> <br />In that regard, Mr. Smith stated that there had been an effort to <br />persuade the General Assembly to make this an offense, as well, without <br />any success. It is my opinion that unless and until the legislature <br />does in fact do this, that the City is without authority to enact any <br />kind of ordinance making mere presence at a "drug house", a criminal <br />offense, unless the party in question is participating in a criminally <br />prescribed drug activity. <br /> <br />Mr. Smith cited as an analogy a Virginia statute that makes it unlawful <br />for any person to be present in a bawdy place. The statute in <br />question, which is Sec. 18.2-347 of the Virginia Code, does not make it <br />unlawful for any person merely to be present in a bawdy place, but <br />rather provides that it "shall be unlawful for any .person ... to ... <br />visit, for immoral purposes, any such bawdy place." There again, mere <br />presence in a bawdy place, without more, does not constitute a criminal <br />offense, and I doubt seriously that even under this statute that the <br />City would have the power to enact an ordinance making mere presence at <br />a bawdy house any kind of misdemeanor. <br /> <br />Mr. Smith argues-that the Charter, specifically paragraph 20 under Sec. <br />2 of Chapter One gives the City the power to enact this ordinance. <br /> <br />Paragraph 20 does give the City the power to compel the abatement and <br />removal' of all public nuisances, "and generally to define, prohibit, <br />abate, suppress and prevent all things detrimental to the health, <br />morals, comfort, safety, convenience and welfare of the inhabitants of <br />the City." Under this language, the City might well have authority to <br />define a place frequented by a person under the influence of unlawful <br />drugs or for the purpose of engaging in an illegal drug transaction as <br />a common nuisance, and in addition to bringing suit to enjoin same, to <br />make it a Class 1 misdemeanor for any person to operate such a place. <br />Moreover, I believe this could be true even if the party in question <br />might be aware of the fact that criminal transactions are taking place, <br />providing that he or she is not participating in those transactions or <br />in any other type of illegal drug activity. For example, if a person <br />goes into a restaurant where drug transactions are taking place merely <br />to get a soft drink, in my opinion, he has not committed any criminal <br />offense. <br /> <br />If you should have any questions about any of the foregoing, please let <br />me know. <br /> <br />In response to a question from Council Member Teague, Commonwealth's <br />Attorney J. Randolph Smith stated that for many years it has been <br />illegal for an individual to be at the site of an illegal distillery <br />and he saw no distinction between that unlawful act and the act of <br />being present at a site where illegal drugs are present. Mayor Adams <br /> <br /> <br />