Sec. 36-1. - Inquiring as to prior arrests in employment interviews or employment applications.

(a)

It shall be unlawful for any person acting for or on behalf of any employer, employment agency, personnel department or any of their employees, agents or representatives thereof, to inquire of prospective employees concerning prior arrests, in applications for employment or in employment interviews.

(b)

The provisions of this section shall in no way prohibit an inquiry of prospective employees regarding conviction resulting from having committed a crime or an inquiry as to whether or not the applicant for employment is now under charges for any offense against the law.

(c)

Any person or corporation violating this section shall be subjected to a maximum fine of $100.00.

(Code 1968, § 39-43.1)

Cross reference— Businesses, ch. 5; human rights, ch. 35.

Sec. 36-2. - Clairvoyancy, palmistry, etc.

It shall be unlawful for any person to engage in, carry on, practice or exercise the vocation or calling of clairvoyancy, palmistry, mesmerism, astrology, fortunetelling, character reading, exhibitions or sittings of like character, or any such fraudulent devices and practices, for which a fee or charge is solicited or made, within the city.

(Code 1968, § 39-12)

Sec. 36-3. - "Gathering of persons" or "gathering"; off-duty police officers.

(a)

For any event or activity that is to be held at a location that is within the city limits to include residential and commercial zoning districts, and that constitutes a "gathering of persons" or "gathering," it shall be required that the owner of the venue hire an adequate number of off-duty police officers, as determined by the police department, to be present at the event if it involves 100 or more persons or a number determined by the chief of police or his designee. For purposes of this section an event shall constitute the renting or leasing of space and or the charging of an entrance fee for the gathering of persons. For purposes of this section, "gathering of persons" and "gathering" shall include:

(1)

An indoor banquet, picnic, bazaar, fair or similar gathering, whether public or private, including but not limited to events and activities sponsored by churches, colleges and universities, volunteer fire companies, political parties or other similar groups having a common civic, social, educational or religious purpose, where:

a.

Food and/or beverages are sold, served or dispensed; and/or

b.

Entrance tickets are sold or entrance fees are required for entry into, or participation in, the activity or event; and

(2)

All outdoor activities where food and/or beverages are sold, served or dispensed.

(3)

Unless otherwise determined by the chief of police or his designee prior to the event, a gathering shall not include:

a.

Gatherings in any restaurant which is regularly used and kept open principally for the purpose of serving complete meals to persons for consideration, and which has seating at tables for 35 or more persons and suitable kitchen facilities connected therewith for cooking an assortment of foods under the charge of a chief or cook; or

b.

Gatherings in any hotels whose primary business is providing space, accommodation, and lodging that are customarily furnished to travelers in consideration of payment.

c.

Gatherings in a conference or convention center.

(b)

In the event that no off-duty police officers are available, the owner of the venue shall be required to hire an adequate number of armed and/or certified security personnel to be present at the event.

(c)

The owner of venue must submit an application for off-duty police coverage to the city police department a minimum of ten days before the event and the city police department shall notify the owner of the venue of the number and names of the off-duty officers assigned to the event within five days of the event. If the owner of the venue cannot confirm the adequate number of off-duty police officers to work the event within 72 hours of the event, then the owner of the venue shall have the responsibility to hire armed and/or certified security personnel for the event.

(d)

Funerals shall be exempt from the requirements of this section.

(e)

The failure of any owner of the venue to comply with the provisions of this section may result in immediate termination of the event and/or shall be punishable upon conviction by a fine in the amount of not less than $500.00 for the first offense and not less than $1,000.00 for the second and subsequent offense.

(Ord. No. 95-035, § 1, 6-8-95; Ord. No. 05-062(sub 1), § 1, 12-1-05; Ord. No. 08-006(sub 2), § 1, 4-17-08)

State law reference— Gathering defined, 4 Del. C. § 101(16).

Sec. 36-4. - Single cigarette sales; sales of cigars and cigarette paper to minors; prohibitions; penalties.

(a)

Prohibitions.

(1)

It shall be unlawful for any person to sell or exchange any single cigarette, or any quantity of unpackaged single cigarettes, to any person, including any minor under the age of 18 years, within the city.

(2)

Further, it shall be unlawful for any person to sell or exchange any cigar, or any quantity of cigars or of any quantity of cigarette paper, to any person under the age of 18 years within the city.

(3)

For the purposes of this section, "cigarettes" includes any roll for smoking, made wholly or in part of tobacco, irrespective of size or shape and whether or not such tobacco is flavored, adulterated or mixed with any other ingredient, where such roll has a wrapper or cover made of paper or any other material except tobacco. Cigarettes shall not be construed to include cigars. "Sell," in addition to its usual meaning, includes to advertise, offer to sell, offer for sale, barter, exchange, transfer, gift or distribution.

(b)

Penalties. Any violation of the provisions of this section shall be punishable upon conviction thereof by a fine in an amount of not less than $100.00.

(c)

License revocation. Any violation of the provisions of this section involving the sale or exchange of cigarettes, cigars or cigarette paper to any minor under the age of 18 years shall subject the person or business establishment to the revocation of the applicable business license of such person or business establishment issued by the city.

(Ord. No. 95-068, § 1, 11-16-95; Ord. No. 97-009, § 1, 3-20-97)

Sec. 36-5. - Potential of consumption and serving fish to others may be dangerous to human health.

Advisory. Until and unless there is a revocation of the official advisories that have been promulgated by the state regarding consumption of fish taken from the Brandywine or Christina Rivers, it shall be the city's policy to encourage any person fishing not to consume, or to sell, trade or barter any fish taken from the waters of the Brandywine and Christina Rivers, within the city. The city's department of parks and recreation shall post, or cause to be posted, signs urging persons not to take fish from the premises, which shall be posted in conspicuous places along both rivers within the city. This section shall not prohibit or prevent any person fishing for his own sport and recreation from catching and releasing any fish from the Brandywine and Christina Rivers. City officials of the parks and recreation department or any other enforcement agency of the city or state may inform any persons fishing in city waterways of the potential dangers and provide appropriate written information on this subject matter.

(Ord. No. 98-131, § 1, 2-26-99)

Sec. 36-6. - Drug paraphernalia sales; prohibitions; penalties.

(a)

Prohibitions.

(1)

It is unlawful for any person to use, deliver, convert, manufacture, sell or offer for sale drug paraphernalia. The term "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 in violation of the Uniform Controlled Substances Act of Delaware. It includes, but is not limited to:

a.

Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived.

b.

Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances;

c.

Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance;

d.

Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness or purity of controlled substances;

e.

Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;

f.

Diluents or adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use, or designed for use in cutting controlled substances;

g.

Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or otherwise cleaning or refining marijuana;

h.

Blenders, bowls, containers, spoons, and mixing devices used, intended for use, or designed for use in compounding controlled substances;

i.

Capsules, balloons, envelopes and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances;

j.

Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances;

k.

Hypodermic syringes, needles or other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body;

l.

Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as:

1.

Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;

2.

Water pipes;

3.

Carburetion tubes and devices;

4.

Smoking and carburetion masks;

5.

Roach clips: meaning objects used to hold burning materials, such as a marijuana cigarette, that has become too small or too short to be held in the hand;

6.

Miniature cocaine spoon, and cocaine vials;

7.

Chamber pipes;

8.

Carburetor pipes;

9.

Electric pipes;

10.

Air-driven pipes;

11.

Chillums;

12.

Bongs; and

13.

Ice pipes or chillers.

(2)

This section will not apply to:

a.

Any person authorized by local, state or federal law to manufacture, possess, or distribute such items; or

b.

Any item that, in the normal lawful course of business, is imported, exported, transported, or sold and traditionally intended for use with tobacco products, including any pipe, paper, or accessory.

(3)

It is unlawful for any person to place in a newspaper, magazine, handbill, store window or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia.

(b)

Penalties. Any violation of the provisions of this section shall be punishable upon conviction thereof by a fine in an amount not less than $1,000.00.

(c)

License revocation. Any violation of the provisions of this section involving the sale or exchange of drug paraphernalia shall subject the person or business establishment to the revocation of the applicable business license of such person or business establishment issued by the city.

(Ord. No. 01-090, § 1, 6-6-02)

State law reference— Uniform Controlled Substances Act, 16 Del.C. § 4701, et seq.

Sec. 36-7. - Affidavit of entrance program.

(a)

Authorization. Any owner or lessee of real property located within the city may, by executing an affidavit of entrance, permit the city police to enter upon his or her property and approach and inquire, in accord with appropriate constitutional standards of any person upon or about that property the purpose and propriety of the presence of such person on the said property. The authorization to enter upon property pursuant to this ordinance shall be limited to:

(1)

The exterior of a single family dwelling or residence including but not limited to alleys, yards, and porches appurtenant to the stated property;

(2)

The common elements or areas of a multifamily housing unit, including but not limited to hallways, foyers, lobbies, courtyards, alleys, porches, laundry rooms, cellars, or other areas maintained for the benefit of all residents of the stated property;

(3)

The exterior of any nonresidential building.

(b)

Requirements for affidavits. Affidavits of entrance pursuant to subsection (a) of this section shall be approved by the law department of the city and shall contain the following information:

(1)

The address or other legal description of the real property;

(2)

The name and status of the owner or lessee of the real property;

(3)

The names of any other lawful occupants of the real property;

(4)

A statement or description, by the affiant, of those areas of the real property not owned or controlled by the affiant;

(5)

A statement that the affiant knowingly, intelligently, and voluntarily waives any Fourth Amendment or Delaware State Constitutional rights in relation to the stated property and gives consent and permission to the city police department to enter onto the stated real property;

(6)

A statement that the affiant may revoke the consent given pursuant to the affidavit at any time;

(7)

The period of time for which the affidavit is valid, not to exceed three years; and

(8)

The signature or other mark of the individual owner or lessee of the real property.

(9)

In the event that the real property is a single family rental unit, the signature of the lessee of the real property.

(c)

Lapse of affidavit. An affidavit executed pursuant to the provisions of this section shall automatically lapse and shall become null and void as a result of any of the following circumstances:

(1)

Any subsequent transfer of the title of the real property stated in the affidavit; or

(2)

Any subsequent termination of the lease or rental agreement for the stated real property; or

(3)

The death of the affiant.

(d)

Administration and enforcement. This section shall be administered and enforced by the city police department. The city police department may develop such forms and administrative rules as it may deem necessary, subject to approval by the administrative board.

(e)

Law enforcement. Nothing in this section shall affect the ability of law enforcement officers to conduct stops, arrests, searches and seizures, or other procedures in the absence of an executed affidavit of entrance.

(f)

Severability. This ordinance shall be liberally construed so as to effectuate its purposes. The provisions of this section shall be severable and if any phrase, clause, sentence or provision of this ordinance is declared to be contrary to the Constitution of the State of Delaware or of the United States or the applicability to any person or circumstance is held invalid, the validity of the remainder of this ordinance and the applicability to any person or circumstance shall not be affected.

(Ord. No. 02-044, § 1, 5-2-02; Ord. No. 02-051, § 1, 6-6-02; Ord. No. 03-031, § 1, 6-19-03)

Sec. 36-8. - Prohibition of swimming and bathing in the Brandywine River Mill Race.

(a)

Swimming prohibited. It shall be unlawful for any person in any manner to swim, bathe, or otherwise enter into the waters of the mill race south of, and adjacent to, the Brandywine River located within the city.

(b)

Display of signs. Consistent with this section, the department of public works shall place signs communicating the prohibition in paragraph (a) of this section. Such signs should clearly communicate that swimming or bathing is prohibited in the mill race and that a violation is a violation of the City Code and punishable by a fine.

(c)

Violation and penalty. Any violation of the provisions of paragraph (a) of this section shall be punishable by a fine in the amount of $100.00.

(Ord. No. 02-083(sub 1), § 1, 9-5-02)

Sec. 36-9. - Regulation of itinerant performers.

(a)

Definitions.

(1)

Perform shall include, but is not limited to, the following activities: acting, singing, playing musical instruments, pantomime, juggling, magic, dancing, reading, puppetry, sidewalk art (working with non-permanent, water-soluble media, i.e., chalk, pastels, or watercolors directly on the pavement), and reciting.

"Perform" shall not include the production of items for sale.

(2)

Performer means a person who has obtained a permit pursuant to this section.

(3)

Public areas means public sidewalks, parks, playgrounds and other public areas for pedestrian use in the City of Wilmington.

(4)

The Main Street Performance Committee shall consist of seven members. Two members shall be appointed by the mayor for terms of one and three years, two members shall be appointed by the president of city council for terms of one and three years, and three members shall be appointed by the Executive Director of Downtown Visions for terms of one, two, and three years. All members shall serve at the pleasure of the appointing authority. The chair of the committee shall be a member of the committee and shall be selected by a majority of the members. The committee shall represent a cross section of the Wilmington artistic community.

(b)

Prohibition. No person may perform in a public area without a permit issued to them.

(c)

Permit.

(1)

A permit shall be issued by the Main Street Promotions Committee to each applicant therefore in exchange for a completed application and a fee of $5.00, the said fee being at the discretion of Downtown Visions and subject to change.

(2)

A completed application for a permit, and the permit itself, shall contain the applicant's name, residence address and telephone number, and shall be signed by the applicant.

(3)

A permit shall be valid from the date on which it is issued for a period of one year from that date.

(4)

A permit shall be nontransferable, and shall contain the permit number of the applicant and the year in which the permit is valid. One permit may be issued for a group performance of up to a maximum of three group members. Larger groups require a special permit. In no event shall any group of performers of three or less, identified as such in their application and noted on their permits, be charged more than the $5.00 fee.

(5)

Upon issuing a permit, Downtown Visions shall also give the performer a copy of the rules and regulations for itinerant performers and a copy of this section.

(6)

If a performer loses his or her permit, one replacement permit per year may be obtained for a fee of $5.00.

(d)

Display of permit. A performer shall clearly display his or her permit while performing, and shall allow inspection of the permit by any Wilmington police officer or staff person of Downtown Visions or of the Main Street Promotions Committee on request.

(e)

Permitted performances.

(1)

Performances may take place in the following locations:

a.

Performers may not perform outside of areas designated by Downtown Visions and the Main Street Promotions Committee. All areas will be located within the geographic boundaries of Wilmington's Downtown Business Improvement District, as specified in Chapter 44 of the Wilmington City Code.

b.

On private property, with the written permission of the owner or other person in control of such property.

c.

In public areas where an authorized street fair or public festival is being conducted, with the permission of the sponsor of such fair or festival.

d.

The licensee may not block roadways, sidewalks, crosswalks, driveways, stairways, curb cuts, handicapped access ramps nor block access to buildings, parks, public conveyances, businesses, crosswalks, traffic control poles containing pedestrian crosswalk button(s).

(2)

Performances may only take place at times determined by Downtown Visions and the Main Street Promotions Committee, not to begin prior to 8:00 a.m. nor to conclude after midnight.

(3)

No performer or group of performers may generate noise which exceeds the ambient noise level by ten dBA, as per article III, section 11-65 (Allowable noise levels and prohibited measurable noise disturbances) of the Wilmington City Code, said article incorporated by reference and a copy of which is attached to the ordinance from which this section derives herein. A performer or group of performers may use sound amplification as long as the resulting sound level is not exceeded. Upon a complaint by a business or resident, a designated staff person from the Wilmington Police Department, with the permissions of the business or resident, shall measure the sound level inside the residential dwelling. If the sound level exceeds a median sound level of 50 decibels, and exceeds the background noise by at least ten dBA, the performer or group of performers causing the excessive sound level shall either turn down the music or move to a distance from the origin of the complaint so as to reduce the sound level within these limitations. Background noise for this purpose shall mean L90.

(4)

A performer may not create an undue interference with the passage of the public through a public area. If a performer attracts a crowd sufficient to obstruct a public way, a police officer may disperse the portion of the crowd that is creating the obstruction.

(5)

No performer or group of performers may perform less than 50 feet away from another group of performers.

(6)

A performer may request contributions of money or property at a performance, provided that the sign requesting contributions is the approved sign sanctioned by the Main Street Promotions Committee. This sign is to be loaned to the performer for the duration of the performance and returned to Downtown Visions upon conclusion of the performance. Contributions may be received in any receptacle, such as an open musical instrument case, box or hat.

(7)

Prior to being granted a street performance permit, all performances/entertainment will be reviewed for appropriate content and shall be subject to acceptance by the Main Street Promotions Committee.

a.

A performer who performs and accepts contributions under the provisions of this chapter shall not be guilty of panhandling unless it is determined by a police officer that such a performance is not in the spirit of entertainment, but rather constitutes disorderly conduct.

(8)

A performer may not create an undue interference with the passage of the public through a public area. If a performer attracts a crowd sufficient to obstruct the public way, a police officer may disperse the portion of the crowd that is creating the obstruction. The police officer shall not cause the performer to leave the location unless efforts to move the crowd fail to adequately protect the public safety or order. A police officer shall not ask the performer to leave the location unless all other means of restoring the public safety or order have been exhausted.

(9)

Performers may offer for sale recordings of their own work, in the form of records, cassettes, videotapes or compact discs. On sidewalks, displays must not obstruct handicap ramps, doorways, or windows (i.e., performers shall not tape or post signs or posters on windows or lean displays against windows so as to obstruct a clear view through the window), and must not exceed more than 20 percent of the width of the sidewalk from the property line of the premises in front of which the display is installed.

a.

Notwithstanding the foregoing, a performer may set up a display on the public sidewalk in front of a doorway to a business if the business is not open, assuming said display meets all other requirements of this section. In public areas other than sidewalks, no such display shall exceed 25 square feet, and it shall be prohibited to place a carpet, rug, blanket, or other such covering over grass in a public place.

(f)

Exclusion of public areas.

(1)

A specific public area may be excluded from performances in accordance with constitutional standards by decision of the Main Street Promotions Committee after a public hearing notice of which shall be advertised no less than 14 days prior to said hearing.

(2)

By decision of the chief of police in the case of an emergency: any holder of a license who disputes the need for said emergency exclusion may appeal to the board of licenses and inspections review for review.

(3)

By decision of the commissioner of parks & recreation, in the case of an emergency regarding a park or playground: any holder of a license who disputes the need for said emergency exclusion may appeal to the board of licenses and inspections review for review.

(g)

Penalties.

(1)

Disposition. For purposes of this section, the following officials shall be specifically authorized to enforce the provisions of this section: Wilmington Police Officers, Downtown Visions, Main Street Promotions Committee staff as provided in this section. The penalty for each violation upon conviction in a court of competent jurisdiction shall be $25.00 per violation.

(2)

Suspension of permit.

a.

The Main Street Promotions Committee and/or the Wilmington Police Department may suspend a permit for no more than 30 days if:

1.

A performer is found to have knowingly provided false information in the application; or

2.

A performer has received three non-criminal dispositions within one calendar year.

3.

Revocation of permit. The Main Street Promotions Committee may revoke a permit for the remainder of the calendar year if a performer has received five summonses during that calendar year.

4.

A performer may not receive a permit unless all tickets from the previous year have been paid.

(h)

Exclusivity. The provisions of this section take precedence over any other city regulations or ordinance applicable to street performances. To the extent other city regulations or ordinances are applicable and are inconsistent with this section, this section shall govern. Sound levels generated by street performances shall be governed by this section and not by the Wilmington City noise ordinance, noting that this section was designed using guidelines set forth in the Wilmington City Code, Chapter II, Article III (Noise Control And Abatement).

(i)

Peace and quiet. A performance done pursuant to this section shall have a rebuttable presumption that it does not to constitute a disturbance of the peace or quiet.

(j)

Severability. The provisions of this section and section 36-9 derived from this section are declared to be severable in accordance with section 1-9 of the City Code.

(Ord. No. 07-040(sub 1), § 1, 7-6-07)

Secs. 36-10—36-35. - Reserved.