Article 1. Uniform Offense Code

11-101. Incorporating uniform public offense code; amendments.

(a) There is hereby incorporated by reference for the purpose of regulating public offenses within the corporate limits of the City of Lakin, Kansas, that certain code known as the Uniform Public Offense Code for Kansas Cities, 37th Edition, prepared and published in book form by the League of Kansas Municipalities, Topeka, Kansas, hereinafter referred to as Uniform Public Offense Code, save and except such articles, sections, parts, or portions as are hereafter omitted, deleted, modified, added or amended. One official copy of said Uniform Public Offense Code shall be marked or stamped "Official Copy as Adopted by Ordinance No. 924", with all sections or portions thereof intended to be omitted or changed clearly marked to show any such omission or change and to which shall be attached a copy of this ordinance, and filed with the City Clerk to be open to inspection and available to the public at all reasonable hours. All references to the Uniform Public Offense Code as adopted and incorporated into the Lakin City Code shall be in a form designating Section 11-101 followed in parenthesis by the section number of the Uniform Public Offense Code, as incorporated. [For example, Section 10.5 of the Uniform Public Offense Code as incorporated shall be referenced as Section 11-101(10.5).]

(b) Amendment. Section 1.1 of the Uniform Public Offense Code, also referred to as 11-101(1.1) of the Code is hereby amended to read as follows:

Section 1.1 Definitions.

(a) As used in the Uniform Public Offense Code, as incorporated, and as used in other public offense ordinances of the City, the words and phrases defined in Section 1.1 of Article 1 of the Uniform Public Offense Code shall have the meanings respectively ascribed to them therein and any such definitions are hereby incorporated by reference as if fully set forth herein, except as expressly provided in subsection (b) or except when the context otherwise requires.

(b) Notwithstanding the definitions of Section 1.1 of Article 1 of the Uniform Public Offense Code as incorporated by subsection (a), the following words and phrases shall have the meanings ascribed to them as set forth below:

(1) Controlled Substance. Any drug, substance or immediate precursor included in any of the schedules designated in K.S.A. 65-4105, 65-4107, 65-4109, 65-4111 and 65-4113, and amendments thereto.

(2) Controlled Substance Analog.

(A) A substance that is intended for human consumption, and at least one of the following:

(1) The chemical structure of the substance is substantially similar to the chemical structure of a controlled substance listed in or added to the schedules designated in K.S.A. 65-4105 or 65-4107, and amendments thereto;

(2) the substance has a stimulant, depressant or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance included in the schedules designated in K.S.A. 65-4105 or 65-4107, and amendments thereto; or

(3) with respect to a particular individual, such individual represents or intends the substance to have a stimulant, depressant or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance included in the schedules designated in K.S.A. 65-4105 or 65-4107, and amendments thereto.

(B) “Controlled substance analog” does not include:

(1) A controlled substance;

(2) a substance for which there is an approved new drug application; or

(3) a substance with respect to which an exemption is in effect for investigational use by a particular person under Section 505 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 355, to the extent conduct with respect to the substance is permitted by the exemption.

(3) Distribute. The actual or constructive transfer from one person to another of some item whether or not there is an agency relationship. Distribute includes, but is not limited to, sale, offer for sale, furnishing, buying for, delivering, giving, or any act that causes or is intended to cause some item to be transferred from one person to another. Distribute does not include acts of administering, dispensing or prescribing a controlled substance as authorized by the Kansas Pharmacy Act, the Uniform Controlled Substances Act, or otherwise authorized by law or ordinance.

(4) Simulated Controlled Substance. Any product that identifies itself by a common name or slang term associated with a controlled substance and that indicates on its label or accompanying promotional material that the product simulates the effect of a controlled substance.

(5) Smoking; Definitions.

(A) Access Point means the area within a fifty-foot (50’) radius outside of any doorway, open window or air intake leading into a building or facility that is not exempted pursuant to subsection (d) of Section 10.24.

(B) Bar means any indoor area that is operated and licensed for the sale and service of alcoholic beverages, including alcoholic liquor as defined in K.S.A. 41-102, and amendments thereto, or cereal malt beverages as defined in K.S.A. 41-2701, and amendments thereto, for on premises consumption.

(C) Employee means any person who is employed by an employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers their services for a nonprofit entity.

(D) Employer means any person, partnership, corporation, association or organization, including municipal or nonprofit entities, which employs one or more individual persons.

(E) Enclosed Area means all space between a floor and ceiling which is enclosed on all sides by solid walls, windows or doorways which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend to the ceiling or are not solid or similar structures. For purposes of this section, the following shall not be considered an enclosed area:

(1) Rooms or areas, enclosed by walls, windows or doorways, having neither a ceiling nor a roof and which are completely open to the elements and weather at all times; and

(2) Rooms or areas, enclosed by walls, fences, windows or doorways and a roof or ceiling, having openings that are permanently open to the elements and weather, and which comprise an area that is at least 30% of the total perimeter wall area of such room or area.

(F) Food Service Establishment means any place in which food is served or is prepared for sale or service on the premises. Such term shall include, but not be limited to, fixed or mobile restaurants, coffee shops, cafeterias, short-order cafes, luncheonettes, grills, tea rooms, sandwich shops, soda fountains, taverns, private clubs, roadside kitchens, commissaries and any other private, public or nonprofit organization or institution routinely serving food and any other eating or drinking establishment or operation where food is served or provided for the public with or without charge.

(G) Gaming Floor means the area of a lottery gaming facility or racetrack gaming facility, as those terms are defined in K.S.A. 74-8702, and amendments thereto, where patrons engage in Class III gaming. The gaming floor shall not include any areas used for accounting, maintenance, surveillance, security, administrative offices, storage, cash or cash counting, records, food service, lodging or entertainment, except that the gaming floor may include a bar where alcoholic beverages are served so long as the bar is located entirely within the area where Class III gaming is conducted.

(H) Hookah means a water pipe and any associated products and devices which are used to produce fumes, smoke, and/or vapor which passes through a liquid, including but not limited to water, prior to being inhaled by a person.

(I) Medical Care Facility means a physician’s office, general hospital, special hospital, ambulatory surgery center or recuperation center, as defined by K.S.A. 65-425, and amendments thereto.

(J) Outdoor Recreational Facility means a hunting, fishing, shooting or golf club, business or enterprise operated primarily for the benefit of its owners, members and their guests and not normally open to the general public.

(K) Place of Employment means any enclosed area under the control of a public or private employer, including, but not limited to, work areas, auditoriums, elevators, private offices, employee lounges and restrooms, conference and meeting rooms, classrooms, employee cafeterias, stairwells and hallways, that is used by employees during the course of employment. For purposes of this section, a private residence shall not be considered a place of employment unless such residence is used as a day care home, as defined in K.S.A. 65-530, and amendments thereto.

(L) Private Club means an outdoor recreational facility operated primarily for the use of its owners, members and their guests that in its ordinary course of business is not open to the general public for which use of its facilities has substantial dues or membership fee requirements for its members.

(M) Public Building means any building owned or operated by:

(1) The state, including any branch, department, agency, bureau, commission, authority or other instrumentality thereof;

(2) Any county, city, township, other political subdivision, including any commission, authority, agency or instrumentality thereof; or

(3) Any other separate corporate instrumentality or unit of the state or any municipality.

(N) Public Meeting means any meeting open to the public pursuant to K.S.A. 75-4317 et seq., and amendments thereto, or any other law of this state.

(O) Public Place means any enclosed areas open to the public or used by the general public including, but not limited to, banks, bars, food service establishments, retail service establishments, retail stores, public means of mass transportation, passenger elevators, health care institutions or any other place where health care services are provided to the public, medical care facilities, educational facilities, libraries, courtrooms, public buildings, restrooms, grocery stores, school buses, museums, theaters, auditoriums, arenas and recreational facilities. For purposes of this section, a private residence shall not be considered a public place unless such residence is used as a day care home, as defined in K.S.A. 65-530, and amendments thereto.

(P) Smoking or smoke means the use of a vaping product or the possession of a lighted cigarette, cigar, pipe or hookah, partially or wholly consisting of or containing burning vegetation or other substance, or possession of any other device or equipment containing heated or burning vegetation or other substance, that is used for the introduction of smoke into the human body. For the purposes of this definition, the term vegetation or other substance includes, but is not limited to, plants, herbs, tobacco or any other organic or synthetic material.

(Q) Substantial Dues or Membership Fee Requirements means initiation costs, dues or fees proportional to the cost of membership in similarly situated outdoor recreational facilities that are not considered nominal and implemented to otherwise avoid or evade restrictions of a statewide ban on smoking.

(R) Tobacco Shop means any indoor area operated primarily for the retail sale of tobacco, tobacco products or smoking devices or accessories, and which derives not less than 65% of its gross receipts from the sale of tobacco.

(S) Vaping Product means any non-combustion product that employs a heating element, power source, electronic circuit, or other electronic, chemical or mechanical means, regardless of shape or size, which can be used to produce any vapor or any aerosol for human consumption from a solution or other form that may or may not contain nicotine. Vaping product includes, but is not limited to, any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah, personal vaporizer, e-pen, vapor pen or similar product or device and any vapor cartridge, container of nicotine or any other solution or substance that is intended to be used to produce any vapor or any aerosol for human consumption. Vaping product does not include any medical inhaler or other device that has been specifically approved for medical use by the United States Food and Drug Administration, if any such medical inhaler or other device is being used or possessed for that medical use.

(6) Tobacco Products. Cigars, cheroots, stogies, periques; granulated, plug cut, crimp cut, ready rubbed and other smoking tobacco; snuff, snuff flour; cavendish; plug and twist tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco, and other kinds and forms of tobacco, prepared in such manner as to be suitable for chewing or smoking in a pipe or otherwise, or both for chewing and smoking. Tobacco products do not include cigarettes or vaping products.

(c) Amendment. Section 5.6 of the Uniform Public Offense Code, also referred to as 11-101(5.6) of the Code is hereby amended to read as follows:

Section 5.6. Purchase or Possession of Cigarettes, Vaping Products, or Tobacco Products by a Person Under 21 Years of Age.

It shall be unlawful for any person:

(a) Who is under twenty-one (21) years of age to purchase or attempt to purchase cigarettes, vaping products, or tobacco products; or

(b) Who is under twenty-one (21) years of age to possess or attempt to possess cigarettes, vaping products, or tobacco products.

Violation of this section shall be an ordinance cigarette or tobacco infraction for which the fine shall be $25. In addition, the judge may require a person under eighteen (18) years of age to appear in court with a parent or legal guardian.

(d) Amendment. Section 5.7 of the Uniform Public Offense Code, also referred to as 11-101(5.7) of the Code is hereby amended to read as follows:

Section 5.7. Selling, Giving or Furnishing Cigarettes, Vaping Products, or Tobacco Products to a Person Under 21 Years of Age.

(a) It shall be unlawful for any person to:

(1) Sell, furnish or distribute cigarettes, vaping products, or tobacco products to any person under twenty-one (21) years of age; or

(2) Buy any cigarettes, vaping products, or tobacco products for any person under twenty-one (21) years of age.

(b) It shall be a defense to a prosecution under this section if:

(1) The defendant is a licensed retail dealer, or employee thereof, or a person authorized by law to distribute samples;

(2) The defendant sold, furnished or distributed the cigarettes, vaping products, or tobacco products to the person under twenty-one (21) years of age with reasonable cause to believe the person was of legal age to purchase or receive cigarettes, vaping products, or tobacco products;

(3) To purchase or receive the cigarettes, vaping products, or tobacco products, the person under twenty-one (21) years of age exhibited to the defendant a driver’s license, Kansas non driver’s identification card or other official or apparently official document containing a photograph of the person and purporting to establish that the person was of legal age to purchase or receive cigarettes, vaping products, or tobacco products; and

(4) For purposes of this section, the person who violates this section shall be the individual directly selling, furnishing or distributing the cigarettes, vaping products, or tobacco products to any person under twenty-one (21) years of age or the retail dealer who has actual knowledge of such selling, furnishing or distributing by such individual or both.

(1) The defendant engages in the lawful sale, furnishing or distribution of cigarettes, vaping products, or tobacco products by mail; and

(2) The defendant sold, furnished or distributed cigarettes, vaping products, or tobacco products to the person by mail only after the person had provided to the defendant an unsworn declaration, conforming to K.S.A. 53-601 and amendments thereto, that the person was twenty-one (21) or more years of age.

(d) As used in this section, sale means any transfer of title or possession or both, exchange, barter, distribution or gift of cigarettes, vaping products, or tobacco products, with or without consideration.

Violation of this section shall constitute a Class B violation punishable by a minimum fine of $200.

(e) Amendment. Section 7.15 of the Uniform Public Offense Code, also referred to as 11-101(7.15) of the Code is hereby amended to read as follows:

Section 7.15. Intimidation of a Witness or Victim.

(a) Intimidation of a witness or victim is preventing or dissuading, or attempting to prevent or dissuade, with an intent to vex, annoy, harm or injure in any way another person or an intent to thwart or interfere in any manner with the orderly administration of justice:

(1) Any witness or victim from attending or giving testimony at any civil or criminal trial, proceeding or inquiry authorized by law; or

(2) Any witness, victim or person acting on behalf of a victim from:

(A) Making any report of the victimization of a victim to any law enforcement officer, prosecutor, probation officer, parole officer, correctional officer, community correctional services officer, judicial officer, the secretary for children and families, the secretary for aging and disability services, or any agent or representative of either secretary, or any person required to make a report pursuant to K.S.A. 38-2223, and amendments thereto;

(B) Causing a complaint, indictment or information to be sought and prosecuted or causing a violation of probation, parole or assignment to a community correctional services program to be reported and prosecuted, and assisting in its prosecution;

(D) Arresting or causing or seeking the arrest of any person in connection with the victimization of a victim.

(b) Intimidation of a witness or victim is a Class B person violation.

(1) Victim means any individual:

(A) Against whom any crime under the laws of this state, any other state or the United States or any ordinance violation under the code of any city is being, has been or is attempted to be committed; or

(B) Who suffers a civil injury or loss; and

(2) Witness means any individual:

(A) Who has knowledge of the existence or nonexistence of facts relating to any civil or criminal trial, proceeding or inquiry authorized by law;

(B) Whose declaration under oath is received or has been received as evidence for any purpose;

(C) Who has reported any crime or any civil injury or loss to any law enforcement officer, prosecutor, probation officer, parole officer, correctional officer, community correctional services officer or judicial officer;

(D) Who has been served with a subpoena issued under the authority of a municipal court or any court or agency of this state, any other state or the United States; or

(E) Who is believed by the offender to be an individual described in this subsection.

(f) Amendment. Section 9.9.3 of the Uniform Public Offense Code, also referred to as 11-101(9.9.3) of the Code, is hereby amended to read as follows:

Section 9.9.3. Unlawful Distribution of Controlled Substances.

(a) No person shall distribute or possess with the intent to distribute a controlled substance or a controlled substance analog designated in K.S.A. 65-4113, and amendments thereto, to any person who is eighteen (18) years of age or older.

(b) Violation of subsection (a) is a Class A violation.

(g) Amendment. Section 9.9.4 of the Uniform Public Offense Code, also referred to as 11-101(9.9.4) of the Code, is hereby amended to read as follows:

Section 9.9.4. Unlawful Possession of Controlled Substances.

(a) No person shall possess any of the controlled substances or controlled substance analogs thereof found in K.S.A. 21-5706(b), and amendments thereto, except as provided in subsection (b).

(b) This section shall not apply if the substance involved is marijuana, as designated in K.S.A. 65-4105(d), and amendments thereto, or tetrahydrocannabinols, as designated in K.S.A. 65-4105(h), and amendments thereto.

(h) Amendment. Section 9.9.6 of the Uniform Public Offense Code, also referred to as 11-101(9.9.6) of the Code, is hereby amended to read as follows:

Section 9.9.6. Distribution of Non-Controlled Substance.

(a) No person shall distribute or possess with the intent to distribute any substance, which is not a controlled substance, to any person who is eighteen (18) years of age or older:

(1) Upon an express representation that the substance is a controlled substance or that the substance is of such nature or appearance that the recipient will be able to distribute the substance as a controlled substance; or

(2) Under circumstances which would give a reasonable person reason to believe that the substance is a controlled substance.

(b) Violation of subsection (a) is a Class A nonperson violation.

(c) If any one of the following factors is established, there shall be a presumption that distribution of a substance was under circumstances which would give a reasonable person reason to believe that a substance is a controlled substance:

(1) The substance was packaged in a manner normally used for the illegal distribution of controlled substances;

(2) The distribution of the substance included an exchange of or demand for money or other consideration for distribution of the substance and the amount of the consideration was substantially in excess of the reasonable value of the substance; or

(3) The physical appearance of the capsule or other material containing the substance is substantially identical to a specific controlled substance.

(i) Amendment. Section 10.1 of the Uniform Public Offense Code, also referred to as 11-101(10.1) of the Code, is hereby amended to read as follows:

Section 10.1. Criminal Use of Weapons.

(a) Criminal use of weapons is knowingly:

(1) Selling, manufacturing, purchasing or possessing any bludgeon, sand club, or metal knuckles;

(2) Possessing with intent to use the same unlawfully against another, a slungshot, throwing star, or any other dangerous or deadly weapon or instrument of like character; provided, however, that nothing herein shall be construed as to prohibit the possession, carrying, or use of a cutting instrument pursuant to K.S.A. 12-16,143; or

(3) Setting a spring gun.

(b) Criminal use of weapons is a Class A violation.

(1) Law enforcement officers, or any person summoned by any such officers to assist in making arrests or preserving the peace while actually engaged in assisting such officer;

(2) Wardens, superintendents, directors, security personnel and keepers of prisons, penitentiaries, jails and other institutions for the detention of persons accused or convicted of crime, while acting within the scope of their authority;

(3) Members of the armed services or reserve forces of the United States or the Kansas national guard while in the performance of their official duty; or

(4) The manufacture of, transportation to, or sale of weapons to a person authorized under subsections (c)(1), (c)(2) and (c)(3) to possess such weapons.

(j) Amendment. Section 10.5 of the Uniform Public Offense Code, also referred to as 11-101(10.5) of the Code, is hereby amended to read as follows:

Section 10.5. Unlawful Discharge of a Firearm.

(a) Unlawful discharge of a firearm is the discharge of a firearm within or into the corporate limits of the city.

(b) This section shall not apply to the discharge of any firearm within or into the corporate limits of the city if:

(1) The firearm is discharged in the lawful defense of one's person, another person or one's property;

(2) The firearm is discharged at a private or public shooting range;

(3) The firearm is discharged by authorized law enforcement or animal control officers;

(4) The firearm is discharged by special permit of the chief of police or by the sheriff when the city has no police department;

(5) The firearm is discharged using blanks; or

(6) The firearm is discharged in lawful self-defense or defense of another person against an animal attack.

(Ord. 733; Ord. 783; Ord. 792; Ord. 800; Ord. 810; Ord. 818; Ord. 833; Ord. 842; Ord. 891; Ord. 894; Code 2018; Ord. 906; Ord. 918; Ord. 924)