California City Municipal Code Ch. 7 Psychoactive Bath Salts, Psychoactive Herbal Incense (spice), and Other…

Recreational or other use of psychoactive bath salts, psychoactive herbal incense (commonly referred to as "spice" or "synthetic marijuana") and similar products commonly known as "synthetic drugs" has been documented to cause hallucinations, agitation, psychosis, aggression, suicidal and homicidal thoughts, 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 such laws and regulations. The purpose and intent of this Chapter is to protect the public health and safety within the City of California City from the dangers and ill effects of all synthetic drugs by declaring certain activities involving synthetic drugs to be a public nuisance and subject to all available civil remedies and, to provide the City of California City with reasonable measure to address the dangers to the community posed by synthetic drugs that are not regulated by state or federal law.

( Ord. No. 17-747, § 1, 6-27-2017 )

(a) Consume, Consuming or Consumption. To ingest, inhale, inject, smoke or snort (insufflate).

(b) Distribute, Distributing or Distribution. To furnish, give away, exchange, transfer, deliver or supply, whether or not for monetary gain.

(c) Person. Includes any natural person, business, firm, company, corporation, public corporation, club, trust, partnership, association or similar organization.

(d) Possess, Possessing or Possession. 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.

(e) Provide, Providing or Provision. Offering to distribute or sell a product or substance to any person, whether or not for monetary gain.

(f) Psychoactive Bath Salts. 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:

i. Cathinone (2-amino-1-phenyl-1-propanone), 4-methylmethcathinone (2-methylamino-1-(4-methylphenyl)propan-1-one), 4-methoxymethcathinone (1-(4-methoxyphyenyl)-2-(methylamino)propan-1-one), MDPV (methylenedioxypyrovalerone), MDMA (3, 4-methylenedioxy-N-methylamphetamine), methylene (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 (13-keto-N-methylbenzodioxolylbutanamine), a-PPP (a-pyrrolidinopropiophenone), 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);

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

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

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

v. 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. This list of names is not all inclusive and is intended only as a guide which is contemporaneous with passage of this Chapter. It is in no way intended to limit enforcement of these provisions to the trade names listed herein.

3. 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") (California Health and Safety Code Section 11000 et seq.), listed in one (1) of the UCSA's schedules of controlled substances (California Health and Safety Code Sections 11053—11058), regulated by one (1) of the UCSA's synthetic drug laws (California Health and Safety Code Sections 11357.5, 11375.5, 11401), regulated by the federal Controlled Substances Act (the "CSA") (21 USCA Section 801 et seq.) or approved by the Food and Drug Administration ("FDA").

(g) Psychoactive Herbal Incense (aka "Spice" or "Synthetic Marijuana"). 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 chemical compounds:

i. Cannabicyclohexanol (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]chromen-1-ol), CP 47, 497 (2-[(1R,3S)-3- hydroxycyclohexyl]-5-(2-methyloctan-2-yl)phenol) CP 47,497 (2-[1R,3S)-3- hydroxycyclohexyl]-5-(2-methyloctan-2-yl)phenol) or AM-2201 (1-[(5-fluoropentyl)-1H-indol-3-yl]-(nap-thalen-1-yl)methanone);

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

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

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

v. Any other substantially similar chemical structure or compound.

2. 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, Stinger, Ocean Blue, Serenity, Fake Weed, No More Mr. Nice Guy and Black Mamba. This list of names is not all inclusive and is intended only as a guide which is contemporaneous with passage of this Chapter. It is in no way intended to limit enforcement of these provisions to the trade names listed herein.

3. The term psychoactive herbal incense shall not include any product, substance, material, compound, mixture, or preparation that is specifically excepted by the UCSA (California Health and Safety Code Section 11000 et seq.), listed in one (1) of the UCSA's schedules of controlled substances (California Health and Safety Code Sections 11053—11058), regulated by one (1) of the UCSA's synthetic drug laws (California Health and Safety Code Sections 11357.5, 11375.5, 11401), regulated by the CSA (21 USCA Section 801 et seq.) or approved by the FDA.

(h) Psychoactive or Psychotropic Euphoric Effects. 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.

(i) Psychoactive or Psychotropic Stimulant Effects. 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.

(j) Sell, Selling or Sale. To furnish, exchange, transfer, deliver or supply for monetary gain.

(k) Synthetic Drug. Includes "psychoactive bath salts" and "psychoactive herbal incense", as those terms are defined herein.

( Ord. No. 17-747, § 1, 6-27-2017 )

(a) On October 9, 2011, Health and Safety Code Section 11375.5 was enacted criminalizing the sale, distribution and possession for sale or distribution of psychoactive synthetic stimulants commonly sold as "bath salts." On January 1, 2012, Health and Safety Code Section 11357.5 became effective, criminalizing the sale, distribution and possession for sale or distribution of "synthetic cannabinoids" commonly marketed as "herbal incense" or "spice." These laws are aimed at combating the growing popularity and dangerous health risks of these "designer drugs." As of the time of enactment of this Chapter, pending legislation seeks to also criminalize the personal use or possession of these synthetic drugs.

(b) Psychoactive Bath Salts. "Bath salts" products contain synthetic stimulants in a class of drugs known as synthetic cathinones, including MDPV, Mephedrone and Methylone. These cathinone derivatives have effects similar to cocaine, amphetamine or MDMA (Ecstasy), and may have a high risk for overdose. Doctors at poison centers and emergency rooms have reported the drug can cause paranoia and violent behavior, hallucinations, delusions, suicidal thoughts, seizures, panic attacks, increased blood pressure and heart rate, chest pain, nausea and vomiting. According to the American Association of Poison Control Centers, in 2015, through June 30, poison centers received reports of two hundred sixty-seven (267) exposures to bath salts. While this number is decreasing from reported exposures in 2011 of six thousand thirty-eight (6,138), in 2012 of two thousand six hundred ninety-one (2,691) and in 2013 of nine hundred ninety-five (995), the numbers have remained steady since 2014 which had 582 reported exposures. The drug seems to be most popular with people who are between the ages of twenty (20) and twenty-nine (29). However, poison centers have seen bath salts exposures in a wide range of ages, from younger than six (6) to older than fifty-nine (59). The drugs come in powder and crystal forms like traditional bath salts; however, they are not the bath salts used in a bath. Users typically snort, inject or smoke them.

(c) Psychoactive Herbal Incense (aka "Spice" or "Synthetic Marijuana"). "Herbal incense" products are most commonly a combustible leafy plant material that has been sprayed with research chemicals called synthetic cannabinoids. While synthetic cannabinoids and natural marijuana act on the body's natural cannabinoid receptors, synthetic cannabinoids are not marijuana. Research and anecdotal reports show that synthetic cannabinoids produce dangerous symptoms not normally associated with marijuana. Making matters worse, synthetic cannabinoids may be combined with other toxic substances. Emergency room physicians report that users of these products experience serious side effects, including severe agitation and anxiety; disorientation, fast, racing heartbeat and higher blood pressure; nausea and vomiting; convulsions, muscle spasms, seizures, and tremors; intense hallucinations and psychotic episodes; suicidal and other harmful thoughts and/or actions. According to the American Association of Poison Control Centers, in 2015 (through July 6), poison centers received reports of four thousand three hundred seventy-seven (4,377) exposures to synthetic marijuana. While it appeared reports of exposures were beginning to decline in 2012, the number of exposures has risen since 2014. In 2010, there were two thousand nine hundred six (2,906) reported exposures; in 2011, there were six thousand nine hundred fifty-nine (6,959) reported exposures; in 2012, there were five thousand two hundred thirty (5,230) reported exposures; in 2013, there were two thousand six hundred sixty-eight (2,668) reported exposures; and, in 2014, there were three thousand six hundred eighty-two (3,682) reported exposures. These products typically appear as packaged dried plant product or leaves, and are sold at gas stations, liquor stores, convenient stores, smoke shops, or on the internet. While they sometimes have warning labels against human consumption, they are intended specifically for that use.

( Ord. No. 17-747, § 1, 6-27-2017 )

(a) It is unlawful for any person to provide, display for sale, sell or distribute, or possess with the intent to sell, any synthetic drug within the City of California City.

(b) Including a disclaimer in any form or in any location that a synthetic drug is "not safe for human consumption," or any similar disclaimer, will not avoid the application of this section.

( Ord. No. 17-747, § 1, 6-27-2017 )

(a) It is unlawful for any person to claim or represent that a product that person is providing, displaying for sale, selling or distributing, or possessing with the intent of selling, is a synthetic drug within the unincorporated areas of the City of California City.

(b) To determine if a person is claiming or representing that a product is a synthetic drug, an enforcing official or 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 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 Health and Safety Code Section 11357.5");

4. The product is significantly more expensive than products that are used for that product's marketed use (such as 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 cannabis); 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) Including a disclaimer in any form or in any location that a synthetic drug is "not safe for human consumption," or any similar disclaimer, will not avoid the application of this section.

( Ord. No. 17-747, § 1, 6-27-2017 )

It is unlawful for any person to possess or use any synthetic drug within the City of California City.

( Ord. No. 17-747, § 1, 6-27-2017 )

(a) It is a public nuisance for any person to provide, display for sale, sell, distribute, or possess with the intent to sell, any synthetic drug within the City of California City.

(b) It is a public nuisance for any person to allow the provision, display for sale, sell, distribution, or possession with the intent to sell, of any synthetic drug on property owned, controlled or managed by such person within the City of California City.

(c) It is a public nuisance for any person to provide, display for sale, sell, distribute, or possess with the intent to sell, any substance claimed or represented to be a synthetic drug within the City of California City.

(d) It is a public nuisance for any person to allow the provision, display for sale, sell, distribution, or possession with the intent to sell, of any substance claimed or represented to be a synthetic drug on property owned, controlled or managed by such person within the City of California City.

(e) To determine if a person is claiming or representing that a substance or product is a synthetic drug, an enforcing officer may consider any of the evidentiary factors set forth in Section 5-7.105.

(f) Possession that is not described in subsections (a) through (d) of this section is declared to be a public nuisance when such possession injuriously affects any person or persons, other than the person in possession, in such other person's or persons' health, safety, welfare, or comfortable enjoyment of life or property.

( Ord. No. 17-747, § 1, 6-27-2017 )

(a) If a public nuisance exists pursuant to this Chapter, any of the persons identified in Section 5-7.112 may proceed under Chapter 3, Public Nuisances, Sections 1-3.01 et seq.

(b) Because the use of synthetic drugs has been documented to cause hallucinations, agitation, psychosis, aggression, suicidal and homicidal thoughts, and death, any violation of this Chapter may present an immediate threat and grave and imminent danger not only to the person consuming the synthetic drug, but also to the public at large. If any of the persons identified in Section 5-7.112, based on the facts then known, determines that a violation of this Chapter presents an immediate threat, imminent danger or hazard, or is imminently injurious to the public health or safety, then that violation is punishable by the summary abatement procedures set forth in this Section 5-7.108 or other law.

(c) Nothing in this Chapter shall be construed to prevent the City of California City from pursuing any and all other legal remedies that may be available, including, but not limited to, civil actions filed by City Attorney seeking any and all appropriate relief such as civil injunctions, penalties and forfeiture.

( Ord. No. 17-747, § 1, 6-27-2017 )

(a) If a person violates any provision of this Chapter, such violation shall be grounds for, in addition to any other enforcement action or remedy authorized by this Code or other law, 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 (hereafter "entity"), in accordance with the procedure of this Code or other law applicable to the respective permit, license, or other grant of authority.

(b) Upon determination that a violation of this Chapter exists, the director of public health services will impose the following sanction.

1. For the first violation, any and all licenses or permits issued by the Kern County Public Health Services Department and/or the City of California City for the entity found to be in violation will be suspended for thirty (30) days.

2. For the second violation, any and all licenses or permits issued by the Kern County Public Health Services Department and/or the City of California City for the entity found to be in violation will be revoked.

( Ord. No. 17-747, § 1, 6-27-2017 )

Any product or substance provided, distributed, 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 City official or officer who issues a criminal citation under this Chapter and removed and stored as evidence in accordance with the law.

( Ord. No. 17-747, § 1, 6-27-2017 )

(a) In addition to any enforcement action and remedy authorized by this Chapter, a violation of any provision of this Chapter may be subject to the enforcement and remedy provisions of Title 1, Chapter 1.12, General Penalty, Sections 1.12.010 through 1.12.030 and any other applicable enforcement and remedy provisions provided under the law.

(b) Any person identified in Section 9.44.120 may, based on the facts then known, determine that, in the interest of justice, a violation of this Chapter constitutes an infraction.

( Ord. No. 17-747, § 1, 6-27-2017 )

This Chapter may be administered and enforced by the director of public health or his/her designee(s), or any other City official or officer so designated.

( Ord. No. 17-747, § 1, 6-27-2017 )

(a) This Chapter shall not apply to drugs or substances lawfully prescribed or to intoxicating chemical compounds that have been approved by the FDA or which are specifically permitted by California law, including, without limitation, intoxicating chemical compounds that are specifically excepted by the UCSA (California 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, California Health and Safety Code Sections 11357.5, 11375.5, and 11401 and the CSA.

(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. No. 17-747, § 1, 6-27-2017 )

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 of the remaining portions of this Chapter. The board of supervisors 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. 17-747, § 1, 6-27-2017 )