Chapter 9.32
PSYCHOACTIVE BATH SALTS, PSYCHOACTIVE HERBAL INCENSE, AND OTHER SYNTHETIC DRUGS
Sections:
9.32.050 Revocation of business license.
9.32.010 Purpose and intent.
A. Recreational use of psychoactive bath salts, psychoactive herbal incense, and similar products commonly known as “synthetic drugs” has been documented to cause hallucinations, agitation, psychosis, aggression, suicidal and homicidal ideations, cannibalism, and death. While state and federal laws and regulations prohibit some synthetic drugs, the manufacturers of these drugs continually alter the composition of the compounds in their products so as to escape the scope of those laws and regulations. The purpose and intent of this chapter is to provide the city with measures to address the dangers to the community posed by synthetic drugs that are not regulated by state or federal law.
B. Synthetic drugs are extremely dangerous and are gaining popularity at an alarming rate among high school and college-aged individuals, as well as among parolees and probationers. These drugs are widely available in stores, despite the state’s attempt to ban such drugs under Health and Safety Code Sections 11375.5 (banning synthetic stimulant compounds and derivatives) and 11401 (banning “analogs” of controlled substances) (collectively “state synthetic drug laws”), and the federal government’s attempt to ban such drugs under the Controlled Substances Act (the “CSA”) (21 U.S.C. 81, et seq.). The city council further finds that the dangers of synthetic drugs, which have been documented to cause hallucinations, agitations, psychosis, aggression, suicidal and homicidal ideations, cannibalism, and death, require regulation.
C. While the state synthetic drug laws and the CSA prohibit certain compounds that are used to create synthetic drugs, they are not comprehensive enough to eliminate the distribution and sale of all synthetic drugs in the city. Specifically, the city council finds that the manufacturers of synthetic drugs continually alter the composition of the compounds in their products so as to not come under the prohibition of the state synthetic drugs laws, the CSA, and other laws and regulations that attempt to prohibit the sale of synthetic drugs. In fact, products which plainly are being marketed for use as synthetic drugs are now being packaged with advertisements stating that the product does not contain compounds specifically banned by the state synthetic drug laws. Thus the city council finds that in order to implement an effective measure prohibiting the distribution to and sale of synthetic drugs, it is necessary to look at all factors related to the sales and marketing of synthetic drugs. These factors will help city officials determine whether a product that does not come under the purview of state synthetic drug laws or the CSA is nevertheless a synthetic drug.
D. While the question of whether a given product is being distributed or sold for use as a recreational drug must be determined on a case-by-case basis, the city council finds that the following evidentiary factors are helpful in determining whether a given product is in fact a synthetic drug:
1. Marketing. Synthetic drugs are rarely, if ever, suitable for their marketed uses. For example, a synthetic drug in the form of a powder might be marketed as a “glass cleaner,” even though the powder cannot reasonably be used to clean glass.
2. Sales Location. Synthetic drugs are typically sold in liquor stores, smoke shops and gas stations, yet synthetic drugs are marketed as products that are not typically sold by these businesses. For example, synthetic drugs are often marketed as bath salts, spice, incense, potpourri, skin treatments, cleaning products and plant food; however, these types of products are typically not sold in liquor stores, smoke shops or gas stations.
3. Warning Labels. Synthetic drugs often use warning labels, such as “not for human consumption” and “not for purchase by minors.” Bona fide bath salts, incense, cleaning products and the like do not typically bear such labels. Of particular relevance are labels that indicate a given product does not contain chemical compounds banned by state synthetic drug laws, which bona fide bath salts, incense, cleaning products and the like would not have any reason to advertise.
4. Price. Synthetic drugs are typically more expensive than products that are used for the synthetic drug’s marketed use. For example, a synthetic drug marketed as “glass cleaner” might be priced at $50.00 for an eighth of an ounce, while bona fide glass cleaner is priced at approximately $5.00 for 26 ounces.
5. Similarity to Illicit Street Drugs. Synthetic drugs often resemble illicit street drugs and/or use brand names and packaging that are designed to make the product appear similar to illicit drugs. For example, many synthetic drugs are sold as white powders packaged in vials (resembling cocaine) or dyed green to appear similar to marijuana. Additionally, brand names are often similar to street slang for illicit drugs and have no relation to the products that are purportedly being sold. These brand names are always changing, but include “Eight Ballz,” “Spice,” “Black Mamba,” “K-2,” “Puff,” “Sugar Sticks,” “Green Buddha,” “Diable Botanical Incense,” “Scooby Snax Potpourri,” “Grape Ape Herbal Incense,” “Three Monkey Incense,” “Mr. and Mrs. Marley,” “Cloud 9 Incense,” and a group of synthetic drugs marketed as from “The Spice Guy.”
E. An effective way to prevent and abate the health, safety and welfare concerns that exist as a result of the marketing, distribution, and sale of synthetic drugs in manners that brazenly seek to circumvent state and federal law is through the administrative, civil and criminal enforcement procedures set forth in Chapters 1.24, 2.56 and 8.28 HMC. This chapter shall not apply to any activity already regulated by the state synthetic drug laws, the CSA, or any other applicable state or federal law or regulation. (Ord. 388 § 1, 2014)
9.32.020 Definitions.
A. “Business” shall have the same meaning as the term is defined in HMC 5.04.010.
B. “Consume,” “consuming,” and “consumption” shall mean to ingest, inhale, inject, smoke or snort (insufflate).
C. “Distribute,” “distributing,” and “distribution” shall mean to furnish, give away, exchange, transfer, deliver or supply, whether for monetary gain or not.
D. “Enforcement officer” shall mean any city employee or agent with the authority to enforce any provision of this municipal code or any law enforcement officer.
E. “Person” shall include any natural person, business, firm, company, corporation, public corporation, club, trust, partnership, association and similar organization.
F. “Possess,” “possessing,” and “possession” shall mean 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.
G. “Provide,” “providing,” and “provision” shall mean offering to distribute or sell a product or substance to any person.
H. “Psychoactive bath salts” shall mean 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:
1. Products that elicit psychoactive or psychotropic stimulant effects and contain any of the following substances:
a. Salvia divinorum or Salvinorin A; all parts of the plant presently classified botanically as Salvia divinorum, whether growing or not, the seeds thereof, any extract from any part of such plant, and every compound, manufacture, salts derivative, mixture or preparation of such plant, its seeds or extracts;
b. Cathinone (2-amino-1-phenyl-1-propane), 4- methylmethcathinone (2-methylamino-1-(4-methylpheny)propan-1-one), 4- methoxymethcathinone (1-(4-methoxyphenyl)-2-(methylamine)propan-1-one), MDPV (methylenedioxypyrovalerone), methylone (3,4-methylenedioxy-N-methylcathinone), methcathinone (2-(methylamino)-1-phenyl-propan-1-one), flephedrone (4-fluoromethcathinone), 3-FMC (3-fluoromethcathinone), ethcathinone (2-ethylamino-1 -phenyl-propan-1 -one), butylone (β-keto-N-methylbenzodioxolylbutamine), a-PPP (a-pyrrolidinopropiophenone), MPPP (4- methyl-a-pyrrolidinopropiophenone), MDPPP (3’,4’-methylenedioxy-a-pyrrolidinopropiophenone), α-PVP (1-phenyl-2-(1-pyrrolidinyl)-1-pentanone) or naphyrone (1-naphthalen-2-yl-2-pyrrolidin-1-ylpentan-1-one);
c. Any derivative of the above listed compounds;
d. Any synthetic substance and its isomers with a chemical structure similar to the above listed compounds;
e. Any chemical alteration of the above listed compounds; or
f. Any other substantially similar chemical structure or compound.
2. 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.
I. “Psychoactive herbal incense” shall mean 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:
1. Products that elicit psychoactive or psychotropic euphoric effects and contain any of the following substances:
a. Cannabicyclohexanol (2-[(1R,3S)-3-hydroxycyclohexyl]- 5-(2-methylnonan-2-yl)phenol), JWH-018 (naphthalen-1-yl-(1-pentylindol-3-yl) methanone), JWH-073 (naphthalen-l-yl-(1-butylindol-3-yl)methanone), JWH200 (1-(2-morpholin-4-ylethyl)indol-3-yl)-naphthalen-1-ylmethanone, HU-210 or 1.1-dimethylheptyl-11-hydroxy-delta8-tetrahydrocannabinol) (6aR,10aR)-9- (Hydroxymethyl)-6,6-dimethyl-3-(2-methyloctan-2-yl)-6a,7,10,10a-tetrahydrobenzo[c] chromen-1-ol), CP 47, 497 (2-[(1R,3S)-3- hydroxycyclohexyl]-5-(2-methyloctan-2-yl)phenol) and the dimethylhexyl, dimethyloctyl and dimethylnonyl homologues of CP-47, 497, AM-2201 (`1-[(5- fluoropentyl)-1H-indol-3-yl]-(naphthalen-1-yl)methanone), 1-Pentyl-3-(2- methoxyphenylacetyl)indole (also known as JWH-250), 1-Hexyl-3-(1- naphthoyl)indole (also known as JWH-019), 1-Pentyl-3-(4-chloro-1- naphthoyl)indole (also known as JWH-398), N-benzylpiperazine (also known as BZP), 1-(3-trifluoromethylphenyl)piperazine (also known as TFMPP);
b. Any derivative of the above listed compounds;
c. Any synthetic substance and its isomers with a chemical structure similar to the above listed compounds;
d. Any chemical alteration of the above listed compounds;
e. Any other substantially similar chemical structure or compound; or
f. Any other synthetic cannabinoid.
2. Products that elicit psychoactive psychotropic euphoric effects and are marketed under any of the following trade names: K2, K3, Spice, Genie, Smoke, Potpouri, Buzz, Spice 99, Voodoo, Pulse, Hush, Mystery, Earthquake, Stinger, Ocean Blue, Serenity, Fake Weed, and Black Mamba.
J. “Psychoactive or psychotropic stimulant effects” shall mean affecting the central nervous system or brain function to change perception, mood, consciousness, cognition, and/or behavior in ways that are similar to the effects of cocaine, methylphenidate or amphetamines.
K. “Psychoactive or psychotropic euphoric effects” shall mean affecting the central nervous system or brain function to change perception, mood, consciousness, cognition, and/or behavior in ways that are similar to the effects of cannabis.
L. “Sell,” “selling,” and “sale” shall mean to furnish, exchange, transfer, deliver, or supply for monetary gain.
M. “Synthetic drug” shall include psychoactive bath salts and psychoactive herbal incense, as those terms are defined herein. (Ord. 388 § 1, 2014)
9.32.030 Possession, storage, consumption, provision, sale, and distribution of synthetic drugs prohibited.
A. It is unlawful for any person to possess, store, consume, provide, 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 chapter.
C. It is unlawful for any person to possess, store, consume, provide, sell, or distribute or to permit the possession, storage, consumption, provision, sale or distribution of synthetic drugs from any real property owned, possessed, managed, or controlled by that person in the city.
D. The enforcement officer may consider any of the following evidentiary factors to determine if the product is a synthetic drug:
1. The product is not suitable for its marketed use (such as crystalline or powder being marketed as “glass cleaner”);
2. The business possessing, storing, providing, distributing or selling the product does not typically possess, store, 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 a half of a gram of a substance marketed as “glass cleaner” costing $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 drug (such as “Eight Ballz” or “Green Buddha”). (Ord. 388 § 1, 2014)
9.32.040 Public nuisance.
A. The possession, storage, consumption, provision, sale, or distribution of any synthetic drug from any property, structure, or building in the city is declared to be a public nuisance.
B. In addition to the penalties provided in other portions of this municipal code, any property used in violation of any provision of this chapter shall constitute a public nuisance and may be abated by the city by civil process by means of a restraining order, a preliminary or permanent injunction, or in any manner provided by law for the abatement of such nuisance, including but not limited to obtaining an order or warrant to confiscate the synthetic drugs. All remedies herein are cumulative and nonexclusive.
C. Any person, including the city, who prevails in any action or proceeding for the abatement of a public nuisance as provided herein shall be entitled to recover attorneys’ fees incurred in any such action or proceeding. (Ord. 388 § 1, 2014)
9.32.050 Revocation of business license.
A. No person holding a validly issued city business license and owning or operating a business in the city may use that business to possess, store, provide, distribute, or sell any synthetic drug or any substance claimed or represented to be a synthetic drug. A violation of this chapter by the holder of a validly issued city business license shall constitute grounds for revocation of a business license.
B. The enforcement officer shall provide written notice of the grounds for revocation of the business license to the business license holder. The business license holder may appeal the revocation. Such appeal shall be filed with the city manager not later than five working days after the date written notice of the decision is made. Failure to timely file an appeal shall result in a waiver to the right to appeal. The appeal shall be reviewed by the city manager. The decision of the city manager shall be rendered in five working days and shall be final. (Ord. 388 § 1, 2014)
9.32.060 Seizure of evidence.
The enforcement officer may seize and store in accordance with law any products or substances possessed, provided, distributed, or sold in violation of any provision of this chapter. (Ord. 388 § 1, 2014)
9.32.070 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 are specifically permitted by California law.
B. This chapter shall not apply to drugs or substances that are prohibited by state or federal law, including without limitation, the state synthetic drug laws, and the federal Controlled Substances Act.
C. This chapter shall not be deemed to prohibit any act that is permitted, prohibited, or preempted by any state or federal law or regulation. (Ord. 388 § 1, 2014)