CHAPTER 5.60
REGULATION OF PSYCHOACTIVE BATH SALTS, PSYCHOACTIVE HERBAL INCENSE, AND OTHER SYNTHETIC DRUGS
SECTION:
5.60.030: Provision, Display For Sale, Sale Or Distribution Of Synthetic Drugs Prohibited
5.60.050: Possession Of Synthetic Drugs Prohibited
5.60.070: Revocation Of Business License
5.60.010 PURPOSE AND INTENT:
There is adequate and reliable scientific and anecdotal documentation to establish that the recreational use of psychoactive bath salts, psychoactive herbal incense and similar products commonly known as "synthetic drugs" has been shown to cause hallucinations, agitation, psychosis, aggression, suicidal and homicidal ideations, and death. While state and federal laws and regulations prohibit some synthetic drugs, makers of these drugs continually alter the composition of the compounds in their products so as to escape the applicability of these laws and regulations. The purpose and intent of this chapter is to provide the city with reasonable measures to address the dangers to the community posed by synthetic drugs that are not regulated by state or federal law. (Ord. 2015-84, 7-6-2015)
5.60.020 DEFINITIONS:
For the purposes of this chapter, the following words, terms and phrases and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future, words used in the plural number include the singular and words used in the singular number include the plural.
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BUSINESS: |
Means any commercial enterprise in the city subject to the business licensing provisions set forth in chapter 4.04. |
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CONSUME: |
Means to ingest, inhale, inject, smoke, or snort. |
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DISTRIBUTE: |
Means to furnish, give away, exchange, transfer, deliver or supply, whether for monetary gain or not. |
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PERSON: |
Includes any natural person, business, firm, company, corporation, public corporation, club, trust, partnership, association or similar organization. |
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POSSESS: |
Means to have for consumption, distribution or sale in one’s actual or constructive custody or control, or under one’s authority or power, whether such custody, control, authority or power be exercised solely or jointly with others. |
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PROVIDE: |
Means offering to distribute or sell a product or substance to any person. |
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PSYCHOACTIVE BATH SALTS: |
Means any crystalline or powder product that contains a synthetic chemical compound that, when consumed, elicits psychoactive or psychotropic stimulant effects. The term "psychoactive bath salts" includes without limitation: |
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A. Products that elicit psychoactive or psychotropic stimulant effects and contain any of the following intoxicating chemical compounds: |
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1. Cathinone (2-amino-1-phenyl-1-propanone), 4‑methylmethcathinone (2-methylyamino-1-(4‑methylphenyl)propoan-1-one), 4‑methyoxymethcathinone (1-(4-methoxyphyenyl)-2-(methylamino)propan-1-one), MDPV (methylenedioxypyrovalerone), MDMA (3, 4‑methylendioxy-N-methyylamphetamine), methylene (3, 4-methylenedioxy-N-methylcathinone), methcathinone (2-(methylarnino)-1-phenyl-propan-1-one), flephedrone (4-fluoromethcathinone), 3-FMC(3-fluoromethcathinone), ethcathinone (2-ethylamino-1-phenyl-propan-1-one), butylone (13-keto-N-methylbenzodioxolybutanamine), a‑PPP(a-pyrrolidinopropiophenon), MPPP (4'-methyl-a-pyrrolidinopropiophenone), MDPPP (3',4'-methylenedioxy-a-pyrrolidinoprio-piophenone), a-PVP (1-phenyl-2-(1-pyrrolidinyl)-1-pentanone) or naphyrone (1-naphthalen-2-yl-2-pyrrolidin-1-ylpentan-1-one); |
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2. Any derivative of the above listed intoxicating chemical compounds; |
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3. Any synthetic substance and its isomers with a chemical structure similar to the above listed compounds; |
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4. Any chemical alteration of the above listed intoxicating chemical compounds; or |
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5. Any other substantially similar chemical structure or compound. |
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B. Products that elicit psychoactive or psychotropic stimulant effects and are marketed under any of the following trade names: Bliss, Blizzard, Blue Silk, Bonzai Grow, Charge Plus, Charlie, Cloud Nine, Euphoria, Hurricane, Ivory Snow, Ivory Wave, Lunar Wave, Ocean, Ocean Burst, Pixie Dust, Posh, Pure Ivory, Purple Wave, Red Dove, Scarface, Snow Leopard, Stardust, Vanilla Sky, White Dove, White Night and White Lightning, or other products with similar name structures or packaging. |
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C. The term "psychoactive bath salts" shall not include any product, substance, material, compound, mixture or preparation that is specifically excepted by the California Uniform Controlled Substances Act ("UCSA") (Cal. Health and Safety Code Section 11000 et seq.), listed in one of the UCSA’s schedules of controlled substances (Cal. Health and Safety Code Sections 11053 through 11058), regulated by one of the UCSA’s Synthetic Drug Laws (Cal. Health and Safety Code Sections 11357.5, 11375.5 and 11401), regulated by the Federal Controlled Substances Act (the "CSA") (21 U.S.C. Section 81 et seq.) or approved by the Food and Drug Administration ("FDA"). |
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PSYCHOACTIVE HERBAL INCENSE: |
Means any organic product consisting of plant material that contains a synthetic stimulant compound that, when consumed, elicits psychoactive or psychotropic euphoric effects. The term "psychoactive herbal incense" includes without limitation: |
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A. Products that elicit psychoactive or psychotropic euphoric effects and contain any of the following chemical compounds: |
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1. Cannabucyclohexanol (2-[(1R,3S)-3-hydroxycyclohexyl]-5-(2-methylnonan-2-yl) phenol), JWH-018 (naphthalene-1-yl-(1-pentylindol-3-yl)methanone), JWH-073 (napththalen-1-yl-(1-butylindol-3-yl)methanone), JWH-200 ((1-(2-morpholin-4-ylethyl)indol-2-yl)-naphthalen-1-ylmethanone), HU-210 ((6aR,1OaR)-9-(Hydroxymethyl)-6,6-dimethyl-3-(2-methyloctan-2-yl)-6a, 7,10, 1Oa-tetrahydrobenzo [c]chroment-1-ol), CP 47, 497 (2-[(1R,3S)-3-hydroxycyclohexyl]-5-(2-methylictan-2-yl)phenol) CP 47, 497 (2-[1R,3S0-3-hydroxycyclohexyl]-5-(2-methyloctan-2-yl)phenol) or AM-2201 (1-[(5-fluoropentyl)-1H-indol-3-yl]-(nap-thalen-1-yl)methanone); |
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2. Any derivative of the above listed intoxicating chemical compounds; |
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3. Any synthetic substance and its isomers with a chemical structure similar to the above listed intoxicating chemical compounds; |
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4. Any chemical alteration of the above listed intoxicating chemical compounds; or |
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5. Any other substantially similar chemical structure or compound. |
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B. Products that elicit psychoactive or psychotropic euphoric effects and are marketed under any of the following names: K2, K3, Spice, Genie, Smoke, Potpourri, Buzz, Spice 99, Voodoo, Pulse, Hush, Mystery, Earthquake, Black Mamba, Stinger, Ocean Blue, Serenity, Fake Weed and Black Mamba, or other products with similar name structures or packaging. |
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C. The term "psychoactive herbal incense" shall not include any product, substance, material, compound, mixture, or preparation that is psychoactive herbal incense, and other synthetic drugs specifically excepted by the UCSA (Cal. Health and Safety Code Section 11000 et seq.), listed in one of the UCSA’s schedules of controlled substances (Cal. Health and Safety Code Sections 11053 through 11058) regulated by one of the USCA’s Synthetic Drug Laws (Cal. Health and Safety Code Sections 11357.5, 11375.5 and 11401), regulated by the CSA (21 U.S.C. Section 81 et seq.) or approved by the FDA. |
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PSYCHOACTIVE OR PSYCHOTROPIC EUPHORIC EFFECTS: |
Means affecting the central nervous system or brain function to change perception, mood, consciousness, cognition or behavior in ways that are similar to the effects of cannabis. |
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PSYCHOACTIVE OR PSYCHOTROPIC STIMULANT EFFECTS: |
Means affecting the central nervous system or brain function to change perception, mood, consciousness, cognition or behavior in ways that are similar to the effects of cocaine, methylphenidate or amphetamines. |
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SELL OR SALE: |
Means to furnish, exchange, transfer, deliver or supply for monetary gain. |
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SYNTHETIC DRUG: |
Includes psychoactive bath salts and psychoactive herbal incense, as those terms are defined hereinabove. |
(Ord. 2015-84, 7-6-2015)
5.60.030 PROVISION, DISPLAY FOR SALE, SALE OR DISTRIBUTION OF SYNTHETIC DRUGS PROHIBITED:
A. It is unlawful for any person to provide, display for sale, distribute or sell any synthetic drug within the city.
B. Merely disclaiming a synthetic drug as "not safe for human consumption" will not avoid the application of this section. (Ord. 2015-84, 7-6-2015)
5.60.040 PROVISION, DISPLAY FOR SALE, SALE OR DISTRIBUTION OF SUBSTANCES CLAIMED OR REPRESENTED TO BE SYNTHETIC DRUGS PROHIBITED:
A. It is unlawful for any person to claim or represent that a product that person is providing, displaying for sale, distributing or selling is a synthetic drug within the city.
B. To determine if a person is claiming or representing that a product is a synthetic drug, the enforcing officer may consider any of the following evidentiary factors:
1. The product is not suitable for its marketed use (such as a crystalline or powder product being marketed as a "glass cleaner");
2. The business providing, displaying for sale, distributing or selling the product does not typically provide, distribute or sell products that are used for that product’s marketed use (such as a liquor store selling "plant food");
3. The product contains a warning label that is not typically present on products that are used for that product’s marketed use (such as "not for human consumption," "not for purchase by minors," or "does not contain chemicals banned by section 11357.5");
4. The product is significantly more expensive than products that are used for that product’s marketed use (such as one-half gram of a substance marketed as "glass cleaner" costing fifty dollars ($50.00));
5. The product resembles an illicit street drug (such as cocaine, methamphetamine or marijuana); or
6. The product’s name or packaging uses images or slang referencing an illicit street drug (such as "Eight Ballz" or "Green Buddha").
C. Merely disclaiming a substance claimed or represented to be a synthetic drug as "not safe for human consumption" will not avoid the application of this section. (Ord. 2015-84, 7-6-2015)
5.60.050 POSSESSION OF SYNTHETIC DRUGS PROHIBITED:
It is unlawful for any person to possess any synthetic drug within the city. (Ord. 2015-84, 7-6-2015)
5.60.060 PUBLIC NUISANCE:
A. It is a public nuisance for any person to provide, display for sale, distribute or sell any synthetic drug within the city.
B. It is a public nuisance for any person to allow the provision, display for sale, distribution or sale of any synthetic drug on property owned, controlled or managed by such person within the city.
C. It is a public nuisance for any person to provide, display for sale, distribute or sell any substance claimed or represented to be a synthetic drug within the city.
D. It is a public nuisance for any person to allow the provision, display for sale, distribution or sale of any substance claimed or represented to be a synthetic drug on property owned, controlled or managed by such person within the city.
E. To determine if a person is claiming or representing that a substance or product is a synthetic drug, the enforcing officer may consider any of the evidentiary factors set forth in Section 5.60.040. (Ord. 2015-84, 7-6-2015)
5.60.070 REVOCATION OF BUSINESS LICENSE:
No person holding a business license and owning or operating a business in the city may use that business to provide, distribute or sell any synthetic drug or any substance claimed or represented to be a synthetic drug. Along with other applicable penalties, a violation of this section by the holder of a city business license, or their employees or agents, shall constitute grounds for modification, suspension, revocation, or any combination thereof, of said license. (Ord. 2015-84, 7-6-2015)
5.60.080 PENALTIES:
A. Misdemeanor and Infraction Violations. Any person or persons violating any of the provisions of this chapter is guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than one hundred dollars ($100.00) and not more than one thousand dollars ($1,000.00), or by imprisonment for a period not exceeding six (6) months, or by both such fine and imprisonment. Notwithstanding the foregoing, any violation of this chapter constituting a misdemeanor may, in the discretion of the city, be charged and prosecuted as an infraction. Such infraction is punishable by a fine not exceeding one hundred dollars ($100.00) for a first violation, a fine not exceeding two hundred dollars ($200.00) for a second violation of the same provision within one year, and a fine not exceeding five hundred dollars ($500.00) for each additional infraction violation of the same provision within one year. An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a jury by trial and shall not be entitled to have the public defender or other counsel appointed at public expense to represent him or her, unless he or she is arrested and not released on his or her written promise to appear, his or her own recognizance or a deposit of bail. However, any person who has previously been convicted two (2) or more times during any twelve (12) month period for any violation of this chapter for a crime made punishable as an infraction may be charged with a misdemeanor upon the third violation.
B. As set forth in section 1.16.010, it shall constitute a new and separate offense for each and every day during any portion of which a violation of, or failure to comply with any provisions or requirement of, this chapter is committed, continued or permitted by any person, firm, corporation and/or entity and shall be punished accordingly.
C. The fine amounts set forth above may be modified, from time to time, by city council resolution. In no event shall such fine amounts exceed the amounts authorized by state law. (Ord. 2015-84, 7-6-2015)
5.60.090 SEIZURE OF EVIDENCE:
Any product(s) or substance(s) possessed, provided, distributed or sold in violation of any provision of this chapter shall be seized by the enforcing officers and removed, stored and disposed of in accordance with law. (Ord. 2015-84, 7-6-2015)
5.60.100 EXCLUSIONS:
A. This chapter shall not apply to drugs or substances lawfully prescribed or to intoxicating chemical compounds that have been approved by the Federal Food and Drug Administration or which are specifically permitted by California law, including without limitation intoxicating chemical compounds that are specifically excepted by the California Uniform Controlled Substances Act (Cal. Health and Safety Code Section 11000 et seq.).
B. This chapter shall not apply to drugs or substances that are prohibited by state or federal law, including without limitation Cal. Health and Safety Code Sections 11357.5, 11375.5, 11401 and the Federal Controlled Substances Act.
C. This chapter shall not be deemed to prescribe any act that is positively permitted, prohibited or preempted by any state or federal law or regulation. (Ord. 2015-84, 7-6-2015)