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PRAIRIE GROVE -- Discussion on whether the city of Prairie Grove should adopt its own vaping ordinance for minors dominated the City Council meeting last week for the second month in a row.

This time, several people had questions about whether the city legally can adopt an ordinance that gives jurisdiction over minors violating the law to district court, instead of juvenile court.

The council in October placed an ordinance to adopt provisions regarding vaping on first reading. The council placed the ordinance on second reading at its Nov. 18 meeting.

The ordinance before the council would allow district court to assess a fine from $10 to $100 for juveniles 18 and younger who are found guilty of violating the vaping regulations.

'Can It & Start Over'

City Council member Ray Carson, who is a retired juvenile court officer with the state of Missouri, said he believes the city is "stepping into an area we don't need to step into."

Carson said the law clearly defines what is juvenile court jurisdiction.

"I really feel very strongly about this," Carson said. "I totally agree with all our worries about our kids. I've buried enough in my profession. But what I'm concerned about, juvenile court is the court of original jurisdiction and we're playing with fire with that whole system."

Carson said he believes the Legislature needs to be the one to make any changes in the law when dealing with vaping and minors.

"But us grabbing what is supposed to be a juvenile court issue and saying they can't handle it and taking it on, I don't agree with it. I just don't. I think we should can it and start over. In my humble opinion," Carson said.

Lt. David Faulk, school resource officer with Prairie Grove Police Department, opened the discussion last week, as he did in October, about more and more minors vaping and the best way to try to discourage and prevent the use of the devices.

Now under state law, officers can confiscate vaping devices from minors and send them to juvenile court.

Prairie Grove School District's policy is that minors caught vaping on school property can receive three days of in-school suspension.

Faught said he approached city officials for help with the increased use of vaping by minors because the juvenile court system has "respectfully said we don't have the manpower, please go to your city."

Juvenile court has said it does not want these cases, Faught said.

Conflicting Laws

City Attorney Steven Parker explained in October that he used a conflict between two state laws as the basis for the legality of the proposed vaping ordinance.

The juvenile code states that Juvenile Court has exclusive authority over juvenile criminal matters with three exceptions: traffic violations, curfew violations and game and fish violations.

Another law, Parker said, gives district court jurisdiction over juveniles when it comes to "traffic violations, game and fish violations, any municipal ordinance violations."

Parker acknowledged last week the ordinance is based on a gray area and the city is "hanging its hat" on the conflict between the two state laws.

"I kept being asked to do this," Parker said. "For the longest time, I thought the juvenile code doesn't allow it and then I found this conflict. There's enough loop there that I think we can hang our hat on it."

Former City Council member Casey Copeland, a child welfare law specialist, told council members he believes the proposed ordinance is illegal and violates the juvenile code jurisdiction.

Copeland said the statue about juvenile court jurisdiction is specific, whereas the later law that allows district court to have jurisdiction over minors for "any" municipal ordinance is more general. The specific law governs, Copeland said.

He added that he believes the Legislature will clear up the conflicting laws but until it does, "Today, this ordinance is illegal in my opinion because it violates the juvenile code jurisdiction."

Council member Rick Ault said he talked to the state attorney general's office about the city's proposed ordinance and "didn't feel any better" about it after visiting with an attorney in the office.

That office suggested engaging with state representatives and with the Municipal League for legislation dealing with minors and vaping, not addressing it on the individual city level, Ault said.

Second Ordinance Proposed

Copeland has proposed a second ordinance that would give minors the option to go to a four-hour class on vaping and smoking cigarettes and then write a paper about it for the first two offenses. On subsequent offenses, fines would come into play.

"A criminal penalty is not the appropriate first step," Copeland said. "Just sending a kid to court is not going to stop it. Vaping is here. You're not going to end it."

Instead of taking kids away from class, Copeland said, have them spend half a Saturday or evening and have a chance to learn about it.

"Our problem is that we're worried about kids in school," Copeland said."I think that educating those individual kids before criminalizing them has a better chance of instilling in them a life-long change."

Faulk said some may see his request for a monetary fine as a competition between Copeland and himself, but he noted the two proposals are not that far apart.

"This is not about winning or losing," Faught said.

Whether juveniles are fined or have to write a paper, Faulk said he believes the city needs to do something to help. Attending a class and writing a paper is still punishment, Faulk said.

"But let's do something," Faulk said. "Let's take a stand somewhere. Let us as grownups, let's help deter that and maybe, just maybe..."

Ault said he believes the issue needs more discussion and research. For one, he said he would like to hear from someone with the juvenile court system on how they are handling it. He also noted the Prairie Grove School Board has not collectively discussed the topic.

Carson also said he would support looking into grants, programs and other innovative ideas to help kids learn about the dangers of vaping.

Legal Or Not?

Faught said the question is whether the city wants to wait on the Legislature, or do something now, if the city can pass an ordinance that's legal.

The police can fall back on its first option, which is to take minors to juvenile court who have been caught with vaping devices, Faught said.

"We can send it to them. By law and our authority we can just send it all to juvenile court and they make a decision on whether to battle it or drop it," Faught said.

But Faught said he's proposing a second option to help kids in the community.

"We've got to do something to discourage it," Faught said.

Mayor Sonny Hudson also said he believes "doing nothing" is not acceptable because of the increased use of vaping products and health dangers to minors.

"As far as not doing it at all, if the juvenile court refuses to take these and if there's something we can do legally, I think it's something we should consider," Hudson said.

At the end of the discussion, Parker asked for direction on what the council wanted him to do with the ordinance, whether to tweak it or make other changes.

Council member Brea Gragg noted that if the majority of the council did not want to move forward at this time, she did not see a reason for Parker to continue with it.

"No offense, Parker, but we shouldn't pay Parker to do it," Gragg said.

Hudson, though, replied there would be discussions before the next council meeting to see if any changes needed to be made.

"I hope we think very calmly about this and dig into it," Hudson said. "I do think as adults it's our responsibility to protect our young people."

Community on 11/27/2019

Print Headline: Council Discusses Legality Of Vaping Ordinance

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