Chapter 11.90 — PSYCHOACTIVE BATH SALTS, PSYCHOACTIVE HERBAL INCENSE AND SIMILAR PRODUCTS

It is the purpose and intent of this Chapter to address the dangers to the community posed by the production, distribution, possession and use of psychoactive bath salts, psychoactive herbal incense, and similar products, and to provide the City with reasonable measures to abate the harms created by such conduct.

(Ord. 143, passed 12-13-2012)

The following words and phrases shall have the meanings set out here in the interpretation and enforcement of this Chapter:

• (a) “Consume” or consumption means to ingest, inhale, inject, smoke or snort (insufflate).

(b) “Distribute,” “distribution,” or “distributing” means to offer for sale, distribute, furnish, gift, transfer, exchange, or give to any person; and includes any and all transactions of that nature made by any person whether as principal proprietor, agent, servant, employee or otherwise.

• (c) “Person” shall include any natural person, business, firm, company, corporation, public corporation, club, trust, partnership, association and/or similar organization.

(d) “Possess,” “possessing” or “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 and/or power be exercised solely or jointly with others.

• (e) “Produce,” “production,” or “producing” means to create, make, manufacture, generate, construct, or develop.

• (f) “Psychoactive bath salts” are defined without limitation as products that elicit psychoactive or psychotropic stimulant effects and contain any of the following substances:

(1) (A) Cathinone (2-amino-l-phenyl-l- propanone), 4-methylmethcathinone (2- methylamino-1-(4-

methylphenyl)propan-1-one), 4-methoxymethcathinone (1-(4-methoxyphenyl)- 2-(methylamino)propan-1-one), MDPV (methylenedioxypyrovalerone), MDMA (3,4- methylenedioxy-N-methylamphetamine), methylene (3,4methylenedioxy-N-methylcathinone), methcathinone (2-(methylamino)-1-phenyl- propan-1-one), flephedrone (4fluoromethcathinone), 3-FMC (3-fluoromethcathinone), ethcathinone (2- ethylamino-1-phenyl-propan-1-one), butylone (13-keto-N-methylbenzodioxolylbutanamine), a-PPP (a-pyrrolidinopropiophenone), MPPP (4'-methyl-apyrrolidinopropiophenone), MDPPP (3',4'- methylenedioxy-a-pyrrolidinopropiophenone), a-PVP (1-phenyl-2-(1pyrrolidinyl)-1-pentanone) or naphyrone (1-naphthalen-2-yl-2-pyrrolidin-1-ylpentan-1-one),

methylenedioxymethcathinone, methylone, methyenedioxypyrovalerone, MDPV4, mephedrone-

methoxymethcathinone, methedrone- fluoromethcathinone, fluoromethcathinone, FMCnaphthylpyrovalerone, alphapyrrolidinopentiopenone (alpha-pvp) which is a derivative of 2-amino-1-phenyl-1-propanone (“cathinone”);

• (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; or any other substantially similar chemical structure or compound;

• (E) Any crystalline or powder product that contains a synthetic chemical compound that elicits psychoactive or psychotropic stimulant effects including, but not limited to, the substances listed in this Section:

methylenedioxymethcathinone, methylone, methyenedioxypyrovalerone, MDPV4, methylmethcathinone,

mephedrone- methoxymethcathinone, methedrone- fluoromethcathinone, flephedrone, fluoromethcathinone, FMCnaphthylpyrovalerone, alpha-pyrrolidinopentiopenone (alpha-pvp) which is a derivative of 2-amino-1-phenyl-1propanone (“cathinone”) and/or any derivatives, synthetic substances and their isomers with similar chemical structure, or any chemical alteration of these compounds which exhibits the same effects, and any other substantially similar chemical structure or compound.

(2) Products commonly marketed under 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. These products may also be marketed under other trade names and/or contain a common disclaimer that these products are not safe for human consumption.

(3) This definition does not include bath salts that do not contain synthetic chemical compounds listed above that elicit psychoactive or psychotropic stimulant effects. Standard bath salts primarily contain magnesium sulfate, Epsom salts, sodium chloride, table salt, sodium bicarbonate, baking soda, sodium hexametaphosphate, Calgon agmlaorpshsouys, sodium metaphosphate, sodium sesquicarbonate and borax.

(g) “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), JVVH-018 (naphthalen-1-0- (1-pentylindol-3-yl)methanone), JWH-073 (naphthalen-1-yl-(1-butylindol-3-yl)methanone), JINN200 ((1-(2-morpholin-4-ylethyl)indol-3-yl)- naphthalen-1-ylmethanone), HU-210 ((6aR,10aR)- 9-

(Hydroxymethyl)-8,6-dimethyl- 3-(2-methyloctan- 2-yl)- 6a,7,10,10a-tetrahydrobenzo icichromen- 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-indo1-3-yl]- (naphthalen-1-yl)methanone);

• (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 organic product consisting of plant material that contains a synthetic chemical compound that elicits psychoactive or psychotropic euphoric effects including, but not limited to, the following: any synthetic cannabinoid compound or any derivatives, synthetic substances and their isomers with similar chemical structure, or any chemical alteration of these compounds which exhibits the same effects, and/or any other substantially similar chemical structure or compound.

(2) Products commonly marketed under 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. These products may also be marketed under other trade names and contain a common disclaimer that these products are not safe for human consumption.

(3) This definition does not include incense that is sold as incense sticks, oils, or cones that are commonly used for their aromatic qualities that do not contain any synthetic chemical compounds listed above that elicit psychoactive or psychotropic euphoric effects.

(h) “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.

(i) “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.

(j) “Sell,” “selling” or “sale” shall mean to furnish, exchange, transfer, deliver or supply for monetary gain. (k) “Synthetic drug” shall include psychoactive bath salts and psychoactive herbal incense, as those terms are defined hereinabove.

(Ord. 143, passed 12-13-2012)

It is unlawful for:

(a) Any person to distribute psychoactive bath salts or psychoactive herbal incense within the City;

(b) Any person to produce psychoactive bath salts or psychoactive herbal incense within the City;

(c) Any person to possess psychoactive bath salts or psychoactive herbal incense within the City;

(d) Any person to produce or distribute any product or substance represented as or designed to resemble psychoactive bath salts or psychoactive herbal incense within the City;

(e) Any person to allow the production or distribution of psychoactive bath salts or psychoactive herbal incense on property owned, controlled, or managed by such person within the City; or

(f) Any person to consume psychoactive bath salts or psychoactive herbal incense within the City.

(Ord. 143, passed 12-13-2012)

(a) Any person who violates this Chapter shall be guilty of a misdemeanor; provided, however, that any such offense may be charged as an infraction in the discretion of the City Attorney or District Attorney. The City Attorney is authorized to prosecute any other civil or criminal remedies available in law or in equity for violations of this Chapter, including, but not limited to, seeking an order or warrant to confiscate psychoactive bath salts or psychoactive herbal incense.

(b) Any person who violates this Chapter shall be guilty of a separate offense for each day or part of a day during which the violation is committed, continued, or permitted.

(c) Alternatively, the City may assess an administrative fine and penalty of $1,000 a day for all violations of this Chapter based upon its finding of the immediate and substantial harm to public health, safety, and welfare by a violation of this Chapter. Such enforcement shall be consistent with the requirements for administrative citations.

(d) In addition to any other remedies, the City may withhold or refuse to issue a business license to any person or entity found to be in violation of this Chapter or may revoke an existing business license as set forth in Section 11.90.060.

(e) Violation of this Chapter also constitutes a public nuisance. Because the use of synthetic drugs has been documented to cause hallucinations, agitation, psychosis, aggression, suicidal and homicidal ideations, 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. If the Code Enforcement Officer, based on the facts then known, determines that a violation of this Chapter presents an 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 Chapter 11.20 hereof. (Ord. 143, passed 12-13-2012)

No person holding a validly issued City 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. A violation of this Section by the holder of a validly issued City business license, shall constitute grounds for modification, suspension, and/or revocation of said license in accordance with the procedures set forth in this Code. (Ord. 143, passed 12-13-2012)

Nothing in this Chapter shall preclude the City from pursuing the remedies made applicable hereto elsewhere in this Municipal Code or under State law, including but not limited to, as applicable, denial or revocation of certificates of occupancy and injunctive relief. In any administrative or criminal proceeding involving the abatement of a public nuisance, the City shall also be entitled to recover its full reasonable costs of abatement, including, but not limited to, investigation, analysis, and prosecuting the enforcement against the guilty party, upon submission of proof of such cost by the City.

• (Ord. 143, passed 12-13-2012)

This Chapter shall not apply to drugs or substances lawfully prescribed or to intoxicating chemical compounds which have been approved by the Federal Food and Drug Administration or which are specifically permitted by California law.

(Ord. 143, passed 12-13-2012)