COUNCIL OF THE CITY OF PHILADELPHIA PUBLIC HEARING BEFORE COUNCIL COMMITTEE ON PUBLIC SAFETY - - - Room 400, City Hall Philadelphia, Pennsylvania Wednesday, 4/18/01 10:15 a.m. - - - BILL 000674 - An ordinance amending Chapter 10-800 of the Philadelphia Code, entitled "Safety," by prohibiting the inhalation of nitrous oxide for nonmedical purposes and by prohibiting the purchase, possession, sale, offering for sale or other distribution of nitrous oxide for prohibited purposes, all under certain terms and conditions. PRESENT: COUNCILMAN ANGEL L. ORTIZ, Chair COUNCILMAN DARRELL L. CLARKE COUNCILMAN DAVID COHEN COUNCILWOMAN DONNA REED MILLER COUNCILWOMAN MARIAN B. TASCO COUNCIL PRESIDENT ANNA C. VERNA - - - VINCENT VARALLO ASSOCIATES, INC. Registered Professional Reporters Eleven Penn Center, Suite 600 Philadelphia, PA 19103 (215) 561-2220 4/18/01 PUBLIC SAFETY I N D E X Deputy Commissioner Sylvester Johnson . . . . Philadelphia Police Department Inspector Jeremiah Daley. . . . . . . . . . . 13 Philadelphia Police Department Otis Haigler, Jr. . . . . . . . . . . . . . . 18 Legislative and Regulatory Affairs, L&I Dr. Walter Tsou, Commissioner . . . . . . . . 21 Philadelphia Public Health Department 3 4/18/01 PUBLIC SAFETY - BILL 000674 P R O C E E D I N G S
This meeting of the City Council Committee on Public Safety is now in order. Councilman Clarke is here, Councilwoman Tasco, Councilwoman Verna -- President Verna, Councilwoman Donna Miller, and Councilman Cohen. The clerk, would you read, since we have a quorum, could you read the title of the ordinance, please.
An ordinance amending Chapter 10-800 of the Philadelphia Code, entitled "Safety," by prohibiting the inhalation of nitrous oxide for nonmedical purposes and by prohibiting the purchase, possession, sale, offering for sale or other distribution of nitrous oxide for prohibited purposes, all under certain terms and conditions.
Thank you. First of all, let me read a letter I got, which I find greatly disturbing. Commissioner Tsou, I'm sorry that I did not answer, but when you called me the other day to ask for postponement of the hearing, I said to you that I had to consult the main sponsor of the 4 4/18/01 PUBLIC SAFETY - BILL 000674 legislation, but in the intervening time, I received this letter. Now, it's disturbing to me because it tries to set up a process for City Council from the executive office, and we are two separate departments of government. I received this letter dated on the 17th, and it says: "Dear Councilman Ortiz: Although the prohibition of nitrous oxide is of high importance to the Philadelphia Police Department, regrettably, we are unable to respond directly to your request for testimony on this matter. As you are aware, all requests for Council testimony from City agencies must be directed to and coordinated through the Mayor's Office." I did not know that. However -- that is not our problem. However the executive wants to organize itself, that's their problem. We just know who we want to come here to testify. "Please note that I will forward your letter to the Mayor's office for consideration. However, I would greatly appreciate it if you would also officially resubmit this request to Joyce Wilkerson. On behalf of Commissioner 5 4/18/01 PUBLIC SAFETY - BILL 000674 Timoney, I apologize for any delay or inconvenience, and I appreciate your consideration in this matter." For years, this Council has been 6 doing business, since I've been here, and longer 7 for President Verna and much longer for my 8 colleague here to my left, David Cohen, and I know 9 that Darrell and Donna, much less. But usually, 10 when a chairman of a committee holds a hearing on 11 legislation, an ordinance or resolution, we set 12 the date for that, Council sets the date according 13 to our schedule, according to or priorities, 14 according to how we see the pressing and the issue 15 that is upon us, and we send the letters out to 16 the people in the Administration that we think are 17 appropriate to come and testify. It is up to those individuals in the Administration to get permission from whoever they have to get permission, if they need that. All they have to understand is that we have a date set for a hearing, and that date is not going to just be postponed because we have to now acquiesce and go through the administrative procedures set up by the executive. That is not how this body has ever 6 4/18/01 PUBLIC SAFETY - BILL 000674 functioned under any president, under any chairman of any committee. I will continue to send to the commissioners of departments the letters and the requests for their appearance before this body. If I have to begin putting into every ordinance 8 and every resolution that we pass for this committee a demand for subpoena power, then we will do that. But the appearance before this body is not optional when a committee requests that you be here. It is not up to your disposition or the disposition of the executive. We're willing to sit down and talk, we're willing to sit down and get together, but we are not willing to abdicate our power and our authority. So this letter to me was highly insulting, Commissioner Sylvester Johnson. Like I said, we just write the letters to the commissioners. However you guys want to organize yourself, that's up to you. But do not, do not try to impose your timelines on the timelines of City Council. Thank you very much. 7 4/18/01 PUBLIC SAFETY - BILL 000674 Councilwoman Verna, do you have anything to say?
Yes, I do. I would just like the record to reflect that on November 2, 2000, I introduced Bill No. 7 674 on this very important issue. It has come to my attention that on December 20, 2000, Governor Ridge in fact signed Senate Bill No. 1173, which in part makes the sale and/or use of nitrous oxide illegal. So in lieu of the passage of this bill 13 and not to overlap with the State, what they have already done, I would ask the Chair that Bill No. 15 674 be withdrawn. However, I would request that we go forward with this hearing today in order to see how the City is enforcing the existing State legislation.
Appropos the remarks by Councilman Ortiz, I just want to speak on behalf of the Deputy Commissioner, Sylvester Johnson, whom I'm known for most of my life and 8 4/18/01 PUBLIC SAFETY - BILL 000674 most of his life, since he's younger than I am, that sometimes the person bringing the message or producing it in writing gets blamed. Obviously, it was not Commissioner Johnson who was the reason for the letter being written. What we want to make clear to the Mayor, and I'm sure you will help convey it and the record of this hearing will convey it, is that it is not up to the executive to determine how the legislative process works. That's the sole function of the legislative body, and we have to have the freedom to approach anyone in the Administration at any time for information. And it's very important that everybody in the Administration knows it, and I suspect that the procedure outlined in the letter, whoever arrived at it, whether the Mayor approved it or somebody else approved it, I'm sure they never intended it to have the impact that it does have. What we're seeking to do is to be an independent body searching for the truth in all of these matters that we must consider, and we have an absolute legal right and we have a fundamental duty to the people who elect us to be able to do 9 4/18/01 PUBLIC SAFETY - BILL 000674 it without any censorship. We have to have the freedom to reach any official at any level in the government, and if necessary, as the Chairman of the committee said, Councilman Ortiz, we can exercise our subpoena rights under the Home Rule Charter to acquire that information, but we much prefer to hold these hearings in a cooperative frame of reference, because we think fundamentally, the executive and the legislative body have the same goals: to build a better city. So we would just hope that our message gets through. We -- I assume that it was just through inadvertence, without anyone fully appreciating how the letter sounded that it was written that that procedure was set up. But whatever procedure the executive does, as Councilman Ortiz said, is the executive's business to work out within the executive department, but we cannot have any shackles on the method by which the Council arrives at what the Council needs for its information upon which to base its legislative decisions. But I'm sure -- I've known Commissioner Johnson for so many years. He's always very 10 4/18/01 PUBLIC SAFETY - BILL 000674 courteous, always cooperative, and we find that generally with respect to the Police Department, and we're very pleased by that element. But what we're dealing with is apparently a citywide executive policy, not a policy of the Police Department. Thank you, Mr. Chairman, for allowing me to express my opinions on it.
Thank you, Councilman Cohen. We have testimony, which arrived yesterday around 5 o'clock in my office. Usually, I really would prefer testimony to come much sooner than that. As the President is reminding me, it's supposed to be at least hours before. 17 We're going to submit that testimony into the 18 record. 19 We'd like to have this hearing revolve, 20 Commissioner Johnson, if you may, revolve around 21 implementation and how this ordinance that has 22 been approved is going to be implemented and 23 enforced. And if Commissioner Tsou and L&I have 24 anything to contribute in terms to that part and phase of the issue, we would appreciate that. 11 4/18/01 PUBLIC SAFETY - BILL 000674 The President has withdrawn the ordinance, but we still would like to use the time to discuss, or at least for you to discuss with us, the implementation of the State ordinance that has been passed and so on. COMMISSIONER JOHNSON: Councilman --
Commissioner? COMMISSIONER JOHNSON: I apologize, 'cause I'm really caught offguard here. I'm not sure what's going on at this point. I came to a hearing from the State Black Caucus over at the room next door; I just happened to walk in here. (Laughter.) COMMISSIONER JOHNSON: I had a 10 o'clock hearing in front of them, so just by walking in here, I heard my name, and they're waiting for me to testify right across the hall. I apologize and I'll try to find out exactly what's going on, and I would never disrespect the Council in any way, at any time.
Oh, I understand that, Commissioner. I did not mean that you have ever done that. It -- it is just something that is not your fault, or even Commissioner Timoney's 12 4/18/01 PUBLIC SAFETY - BILL 000674 fault. But we'd like to be able to, if perhaps the inspector that would do it, where is it that we're going to go with this problem and how are we going to enforce legislation now on the books in terms of this so that we have some control over it, be it at Vets Stadium, be it at the new facilities that we're building? And I think that's what the President's interested in and I think that's what this committee's interested in at this point in time. COMMISSIONER JOHNSON: I think Inspector Daley is prepared to testify, he's always prepared to come wherever he goes.
Okay. COMMISSIONER JOHNSON: But at the same time, I would like to go across to 401, and as soon as I'm done testifying there, I will be right back.
Yes. As far as I'm concerned, the deputy can leave.
Yes. COMMISSIONER JOHNSON: All right, thank 13 4/18/01 PUBLIC SAFETY - BILL 000674 you.
Inspector Daley, in your testimony, you indicate that under the current law, it is not a crime to possess nitrous oxide, but under State Bill 1173, it is a misdemeanor to possess the substance. Why weren't you aware of the change in the law? INSPECTOR DALEY: I only became aware of the change this morning, and since my testimony was submitted, we did hear --
I do have copies. INSPECTOR DALEY: -- Madam President, that there was State legislative action pending. I was not aware, however, that this law was enacted. And as I understand from reading the legislation and the legislative history today, this only became effective a week ago. So we have not been briefed on it to this point. But one of the things that we will ensure is done now, now that we have a copy of the legislation in our hands and can go forward with it, is that we'll communicate this --
I think the 14 4/18/01 PUBLIC SAFETY - BILL 000674 Governor signed that in December. What is the process in the Department for enforcing new laws that are very much needed? INSPECTOR DALEY: Well, as a --
What type of education program is in place or will be in place? And can you give us some idea as to how the Department intends to enforce this piece of legislation, namely Senate Bill 1173? INSPECTOR DALEY: Yes, ma'am. As a component of the annual municipal police officers training program that each sworn officer in the Commonwealth of Pennsylvania must undergo, Philadelphia police officers receive a bloc of instruction on legal updates. That program gives an opportunity for all new legislations that are enacted into the crimes code, traffic codes, and other codes that the police are empowered to enforce an opportunity to discuss the changes and highlight the particulars of the legislation and how it will be useful for police officers in conducting their duties. Prior to this enactment, there was nothing that made nitrous oxide specifically a 15 4/18/01 PUBLIC SAFETY - BILL 000674 prohibited offense to possess, sell, or use. This State legislation, much the way the proposed ordinance would prohibit all three of those acts -- use, possession and sale of nitrous oxide along with other inhaleable substances that are often abused by people in an effort to get high. As we communicate this new State legislation to our officers, both through the annual training and through a training bulletin that will be sent out forthwith, we can now direct officers that when they see young people -- or old people for that matter, but primarily this is a you know person's problem -- abusing these substances, that the individual can be arrested for that offense on site as a misdemeanor and for possession of those items as well. Likewise, if we receive complaints about sales of these products, we can arrest the persons that are distributing these products -- when it's clear that there is -- the intention is for abuse rather than for its legitimate purposes.
I guess this became known to everybody, as far as the abuse is concerned, at the stadium for the football games. 16 4/18/01 PUBLIC SAFETY - BILL 000674 But in your testimony, you say that this occurs in the community quite often. Can you elaborate on that, please. INSPECTOR DALEY: Certainly. We've received complaints over the past couple of years and information from other sources that nitrous oxide, among other inhaleable substances that cause inebriation, are being abused in residential neighborhoods in either house parties or, as often occurs, with teenagers in wooded areas within the City where they go to drink beer and party. Heretofore, as we said, we weren't particularly empowered to do anything about that. Where we were able to have some success at the stadiums, when this issue arose acutely last year during sporting events and concerts and things of that nature, we've been able to work in partnership with Licenses and Inspections on the issue of the sales, when someone was selling nitrous oxide in balloons or other containers. Licenses and Inspections could work with us in issuing citations for violation of vending ordinances. That was our only avenue of authority in this area heretofore. 17 4/18/01 PUBLIC SAFETY - BILL 000674 In these residential situations, where we would get a call or a complaint that a house party was going on and there's kids, they just got a whole bunch of tanks of laughing gas delivered, we were pretty much powerless to do anything about that. We could go and we could knock and we could explain to the persons there that it was a dangerous substance, but there was no legislation in place, no legal authority for us to go any further than that.
Thank you. According to the Senate bill, this would be a misdemeanor of the third degree. Can you explain that to us, please. INSPECTOR DALEY: A misdemeanor of the third degree is the lowest grade of indictable offense available under the Pennsylvania statutes. As a misdemeanor of the third degree, the person, upon conviction, could face a sentence of up to one year in jail and up to I believe it's a $5,000 fine upon conviction. It would be a custodial-arrest situation and would require that the individual be fingerprinted and photographed, and it would become a part of his criminal 18 4/18/01 PUBLIC SAFETY - BILL 000674 history.
Thank you. And the Senate bill took effect immediately upon the signature of the governor, or within 60 days?
My name is Otis Haigler, Legislative and Regulatory Affairs Manager for the Department of Licenses and Inspections.
Good morning. If you would look at the last page of the bill, ma'am, where it talks about the -- at the bottom there, the amendment of or addition of 18, Title 18, and specifically that section, 7303, shall take effect 60 days, so it was 60 days after the governor signed the law into effect. As a matter of fact, I guess in effect, it took effect sometime in March.
So, Inspector, following the President's questioning, it became 19 4/18/01 PUBLIC SAFETY - BILL 000674 effective 60 days, and I imagine that this is usually perhaps abused more often in activities of concerts, sports, and so on, along those lines and I think the --
And at home, I imagine, in certain issues. But how are we going to believe -- is it just going to be a part of the overall tactical administration and implementation of the police department? Is nitrous oxide going to be added to the list that police will have at hand to see whether they are pot smoking outside of the First Union or at concert and so on, along those lines? Are you going to have some orientation with the Police Department as to nitrous oxide, what it does, how to identify it, how to be able to see whether people are affected by it and so on? Is that going to happen? INSPECTOR DALEY: I think really one of the things that we want to do is provide training for all police officers on nitrous oxide and the other inhalants that are commonly abused that are 20 4/18/01 PUBLIC SAFETY - BILL 000674 now prohibited by the statute and some of the effects, some of the indications that a person may be under its effects and the dangers that are involved in it. On a specific situation such as a concert at the First Union or at Vets Stadium or any of these large sporting events, part of what we will do in the operational order for those type events is remind everyone at the roll call briefing that anybody found in possession of nitrous oxide or using nitrous oxide or telling nitrous oxide or any of these others substance are subject to arrest under the new statute in the crimes code and they should be taken into custody immediately.
But how would they know? Dr. Tsou, Dr. Tsou, are you going to give the Police Department -- can you come up.
Are you going to give the Police Department some orientation as to how this is used and the effect and the type of behavior that it produces so that police can be 21 4/18/01 PUBLIC SAFETY - BILL 000674 much more aware of how the drug of choice at the present time at certain events is used?
Well, we certainly would be happy to work with the Police Department on that issue. We actually have not had a formal discussion about that, but certainly we're more than willing to participate in this orientation.
Inspector, are you going to use the services of Dr. Tsou to at least serve as a orientation device and give you some writings into the nitrous oxide and what it does? I have a newspaper article that my staff just handed me here, health and questions and answers. And it says that the dangerous of recreational use of nitrous oxide -- and this came out of the Internet, so this type of article, I would imagine, would be useful to have every policeman to read and at least have some questions and answers on their hands. INSPECTOR DALEY: Absolutely, Councilman. We would be glad to have the assistance of the Health Department in discussing the effects and the consequences of nitrous oxide abuse. 22 4/18/01 PUBLIC SAFETY - BILL 000674 We have, as already researched this a bit with the National Institute of Drug Abuse Web site and some of the other publications that we normally receive from various groups, looked into the issue of inhalant abuse and nitrous oxide abuse specifically. I think certainly that Dr. Tsou's assistance would enhance that greatly, and we may be able to provide some very good education for our officers in that regard. And I think it's also, you know, critically important for us to include the issue of inhalant abuse and nitrous oxide specifically in our demand reduction efforts.
But this is not going to lead to any raids on dentists' offices, right? INSPECTOR DALEY: We do not anticipate breaking down doors and rescuing anybody from the dentist's drill in these operations, but we would like to at least raise consciousness amongst our officers and also amongst the community at large about the dangers involved here.
Commissioner, 23 4/18/01 PUBLIC SAFETY - BILL 000674 I just have a statement. You have stated the potential dangers of nitrous oxide. Does the Health Department have any plans to create a program to get the message out to many of the high school youngsters who may have, in fact, be using the substance?
We have many efforts to try to educate school kids about a variety of issues around drugs, and part of the curriculum that we plan to be doing will include issues around nitrous oxide and its potential effects. We also plan to be working in developing after-school programs as one of the Mayor's major objectives, and we believe that drug education, including about nitrous oxide, will be a part of that educational program.
Thank you. I think that's extremely important. Thank you.
No, thank you. 24 4/18/01 PUBLIC SAFETY - BILL 000674
Thank you. Does anyone else have anything else to contribute? (No response.)
Thank you. All of the testimony will be made a part of the record. I want to thank you for attending the hearing and the testimony that you submitted. Thank you very much. And I hope that next time you will remember that it's 48 hours prior to the hearing, 48 hours, not at 5 o'clock the day before the hearing. Thank you very much. The Committee on Public Safety stands in recess.
Thank you. (Adjourned 10:43 a.m.) 25 C E R T I F I C A T E I HEREBY CERTIFY that the foregoing proceedings of the Council of the City of Philadelphia of Wednesday, April 18, 2001, were reported fully and accurately by me, and that this is a correct transcript of same. RE: COUNCIL COMMITTEE ON PUBLIC SAFETY BILL NO. 000674 __________________________________, JOSEPHINE CARDILLO, Registered Professional Reporter