Big Bear Lake Municipal Code Ch. 9.38 Synthetic Drugs

Recreational use of psychoactive bath salts, psychoactive herbal incense, and similar products, commonly known as "synthetic drugs," has been documented to cause hallucinations, agitation, psychotic episodes, long-term psychosis, seizures, paralysis, kidney failure, increased heart rate and heart attacks, brain swelling and death. While state and federal laws and regulations prohibit some synthetic drugs, the makers of these drugs continually alter the composition of the compounds in their products so as to escape the purview of these laws and regulations. The purpose of these regulations is to provide the city with the means to address the dangers to the community caused by the distribution and sale of synthetic drugs that are not regulated by state or federal law. This chapter is enacted to make synthetic drugs unavailable for distribution and sale within the city. These regulations work in concert with the county regulations to make synthetic drugs unavailable for purchase throughout the entire Big Bear Valley. The intended outcomes of making synthetic drugs unavailable are to promote awareness of the significant dangers of synthetic drugs, to protect people, especially the youth and young adults who may be unaware of the dangers of synthetic drugs, to protect private and public property from damage by users of these drugs, and to maintain the public health, safety and welfare of all citizens and visitors. This chapter shall not apply to any activity already regulated by the State Synthetic Drug Laws, the Federal Controlled Substances Act, or any other applicable state or federal law or regulation.

(Ord. No. 2016-447, § 4, 1-25-2016)

The following definitions shall apply to this chapter:

"Consume," "consuming," or "consumption" shall mean to ingest, inhale, inject, smoke, or snort (insufflate).

"Distribute," "distributing," or "distribution" shall mean to furnish, give away, exchange, transfer, deliver, or supply, whether for monetary gain or not.

"Person" shall include any natural person, business, firm, company, corporation, public corporation, club, trust, partnership, association, and/or similar organization.

"Possess," "possessing," or "possession" shall mean to have for consumption, distribution, or sale in a person's actual or constructive custody or control, or under a person's authority or power, whether such custody, control, authority, and/or power is exercised solely or jointly with others.

"Provide," "providing," or "provision" shall mean offering to distribute or sell a product or substance to any person.

"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 intoxicating chemical compounds:

a. Cathinone (2-amino-1-phenyl-1propanone), 4-methylmethcathinone (2-methylamino-1-(4-methlphenyl)propan-1-one), 4-methoxymethcathinone (1-(4-methoxyphenyl)-2-(methlamino)propan-1-one), MDPV (methylenedioxypyrovalerone), MDMA (3,4,-methlenedioxy-N-methylamphetamine), methylone (3,4-methylenedioxy-N-methlcathinone), methcathinone (2-(methylamino)-1-phenyl-propan-1-one), flephedrone (4-fluoromethcathinone), 3-FMC (3-fluoromethcathinone), ethcathinone (2-ethlamino-1-henyl-propan-1-one), butylone (β-keto-N-methylbenzodioxolylbutanamine), a-PPP (a-pyrrolidinopropiophenone), MPPP (4'-methyl-pyrrolidinopropiophenone), MDPPP (3',4'-methylenedioxy-pyrrolidinopropiophenone), -PVP (1-phenyl-2(1-pyrrolidinyl)-1-pentanone) or naphyrone (1-paphthalen-2-yl-2-pyrrolidin-1-ylpentan-1-one);

b. Any derivative of the above listed intoxicating chemical 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 intoxicating chemical compounds; or

e. Any other substantially similar chemical structure or compound; and

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.

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) (Health and Safety Code Sections 11000 et seq.), listed in one of the UCSA's schedules of controlled substances (Health and Safety Code Sections 11053—11058), regulated by one of the UCSA's Synthetic Drug Laws (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").

"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 intoxicating chemical compounds:

a. Cannabicyclohexanol (2-[(1R,3S)-3-hydroxycyclohexyl]-5-(2-methylnonan-2-yl)phenol, JWH-018 (naphthalene-1-yl-(1-pentyllindol-3-yl)methanone, JWH-073 (naphthalene-1-yl-(1-butylindol-3-yl)methanone), JWH-200 (1-(2-morpholin-4-ylethyl)indol-3-yl)-naphthlen-1-ylmethanone, HU-210 ((6aR,10aR)-9-(Hydroxymethyl-6,6-dimethyl-3-(2-methloctan-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 or AM-2201 (1-[(5-fluoropentyl)-1H-indol-3-yl]-(naphthalene-1yl)methanone);

b. Any derivative of the above listed intoxicating chemical compounds;

c. Any synthetic substance and its isomers with a chemical structure similar to the above listed intoxicating chemical compounds;

d. Any chemical alteration of the above listed intoxicating chemical compounds; or

e. Any other substantially similar chemical structure or compound; and

2. Products that elicit psychoactive or psychotropic euphoric effects and are marketed under any of the following trade names: K2, K3, Spice, Genie, Smoke, Potpourri, Buzz, Spice 99, Voodoo, Pulse, Hush, Mystery, Earthquake, Ocean Blue, Stinger, Serenity, Fake Weed, and Black Mamba.

The term "psychoactive herbal incense" shall not include any product, substance, material, compound, mixture, or preparation that is specifically excepted by the UCSA (Health and Safety Code Section 11000 et seq.), listed in one of the UCSA's schedules of controlled substances (Health and Safety Code Sections 11053—11058), regulated by one of the USCA's Synthetic Drug Laws (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.

"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.

"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.

"Sell," "selling," or "sale" shall mean to furnish, exchange, transfer, deliver, or supply for monetary gain.

"Synthetic drug" shall include psychoactive bath salts and psychoactive herbal incense, as those terms are defined hereinabove.

(Ord. No. 2016-447, § 4, 1-25-2016)

A. It is unlawful for any person to provide, distribute, or sell any synthetic drug.

B. Merely disclaiming a synthetic drug as "not safe for human consumption" will not avoid the application of this chapter.

(Ord. No. 2016-447, § 4, 1-25-2016)

A. It is unlawful for any person to claim or represent that a product that that person is providing, distributing or selling is a synthetic drug.

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 "glass cleaner");

2. The person providing, distributing, or selling the product does not typically provide, distribute, or sell products that are used for that product's marked use (such as a smoke shop 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 (for example, a half of a gram of a substance marketed as "glass cleaner" costing multiple times the price of actual glass cleaner);

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 chapter.

(Ord. No. 2016-447, § 4, 1-25-2016)

It is unlawful for any person to possess any synthetic drug for the purpose of providing, distributing, or selling the synthetic drug.

(Ord. No. 2016-447, § 4, 1-25-2016)

A. It is a public nuisance for any person to provide, distribute, or sell any synthetic drug.

B. It is a public nuisance for any person to allow the provision, distribution, or sale of any synthetic drug on property owned, controlled, or managed by such person.

C. It is a public nuisance for any person to provide, distribute, or sell any substance claimed or represented to be a synthetic drug.

D. It is a public nuisance for any person to allow the provision, distribution, or sale of any substance claimed or represented to be a synthetic drug on property owned, controlled, or managed by such person.

(Ord. No. 2016-447, § 4, 1-25-2016)

Any product or substance provided, distributed, or sold, or possessed for the purpose of providing, distributing, or selling the product or substance, in violation of any provision of this chapter, may be seized by any peace officer who issues a criminal citation under this chapter and removed and stored as evidence in accordance with law.

(Ord. No. 2016-447, § 4, 1-25-2016)

Because the use of synthetic drugs has been documented to cause hallucinations, agitation, psychotic episodes, long-term psychosis, seizures, paralysis, kidney failure, increased heart rate and heart attacks, brain swelling and death, any violation of this chapter presents a grave and imminent danger not only to the person consuming the synthetic drug, but also to the public at large. Thus, if the enforcing officer, based on the facts then known, determines that a violation of this chapter has occurred or is occurring, then that violation may be subject to the summary abatement procedures authorized by the Municipal Code or other law.

(Ord. No. 2016-447, § 4, 1-25-2016)

If a person violates any provision of this chapter, such violation shall be grounds for modification, suspension, or revocation of any permit, license, or other grant of authority by the city issued to the person, or issued to any business, firm, company, corporation, public corporation, club, trust, partnership, association, and/or similar organization owned, controlled, or managed by such person, in accordance with the procedure of the Municipal Code or other law applicable to the respective permit, license, or other grant of authority. The modification, suspension, or revocation of any permit, license, or other grant of authority is in addition to any other enforcement action or remedy authorized by the Municipal Code or other law.

(Ord. No. 2016-447, § 4, 1-25-2016)

In addition to any enforcement action and remedy authorized by this chapter, a violation of any requirement of this chapter may be subject to the enforcement and remedy provisions of Municipal Code Title 1, Chapter 1.16, "General Penalty" and any other applicable enforcement and remedy provisions of the Municipal Code or provided under law.

(Ord. No. 2016-447, § 4, 1-25-2016)

A. This chapter shall not apply to drugs or substances lawfully prescribed or to chemical compounds that are approved by the Food and Drug Administration or that are permitted by state law, including compounds that are excepted by the California Uniform Controlled Substances Act (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, Health & 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 permitted, prohibited, or preempted by any state or federal law or regulation.

(Ord. No. 2016-447, § 4, 1-25-2016)

If any subsection, sentence, clause or phrase of this chapter is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction or preempted by state or federal legislation, such decision or legislation shall not affect the validity or the remaining portions of this chapter. The city council declares that it would have passed this chapter and each and every subsection, sentence, clause or phrase not declared invalid or unconstitutional without regard to any such decision or preemptive legislation.

(Ord. No. 2016-447, § 4, 1-25-2016)