Chula Vista Municipal Code Ch. 9.17 Drug Paraphernalia – Prohibited

DRUG PARAPHERNALIA – PROHIBITED

Sections:

• 9.17.010 Purpose and intent.

• 9.17.020 Definitions.

• 9.17.030 Display of drug paraphernalia.

• 9.17.040 Distribution of drug paraphernalia.

• 9.17.050 Exceptions.

• 9.17.060 Violation – Penalty.

• 9.17.070 Severability.

The City Council has become aware of and concerned over the general proliferation of “head shops” and other establishments engaged in the sale of paraphernalia associated with drug use. Therefore, the City Council did heretofore adopt Ordinance 1892, in 1980, prohibiting the sale or display of such items to minors. However, the City Council now finds that the illegal use of such substances by all persons, especially those under 18 years of age, has reached critical proportions requiring further legislation on the subject. It is causing serious physical and psychological damage to the youth of this community, an impairment of education achievement and of the efficiency of the educational system, increases in non-drug-related crime, and a threat to the ability of the community to ensure future generations of responsible and productive adults, all to the detriment of the health, safety and welfare of the citizens of Chula Vista.

The distribution of such paraphernalia intensifies and otherwise compounds the problem of illegal use of controlled substances within this community.

It has further been determined that the existing ban as prescribed in the Chula Vista Municipal Code that has been in effect since 1980 against the display and distribution of drug paraphernalia to persons under 18 years of age has not been practical. The person who displays or distributes would not have to be concerned with the question of minority and who could lawfully view or receive drug paraphernalia. The already thinly staffed law enforcement agencies would be subject to intolerable added enforcement burdens by adding age of a person who views or receives drug paraphernalia as an element of a prohibition upon display and distribution.

A significant number of high school students are 18 years of age or older. It would be unlawful to distribute paraphernalia to some students attending the same school in which the distribution to other students would be prohibited. Permitted display and distribution to adults within the community would symbolize a public tolerance of illegal drug use, making it difficult to explain the rationale of programs directed against similar abuse by youth. The problem of illegal consumption of controlled substances by adults within this community is significant and substantial, necessitating a cessation of the encouragement to abuse drugs which the display and distribution of drug paraphernalia create.

Therefore, it is the purpose and intent of the Council to introduce this measure banning the display and distribution of drug paraphernalia in order to discourage the illegal use of controlled substances within the City. (Ord. 2007 § 2, 1982).

As used in this chapter, the following terms shall be ascribed the following meanings:

A. “Business” means a fixed location, whether indoors or outdoors, at which merchandise is offered for sale at retail.

B. “Controlled substance” means those controlled substances set forth in Sections 11054, 11055, 11056, 11057, and 11059 of the California Health and Safety Code, identified as Schedules I through V, inclusive, as the sections now exist or may hereafter be amended, renumbered or added to in any way.

• C. “Display” means to show to a patron or have in a manner so as to be available for viewing.

• D. “Distribute” means to transfer ownership or a possessory interest to another, whether for consideration or as a gratuity. “Distribute” includes both sales and gifts.

E. “Drug paraphernalia” means all equipment, products and materials of any kind which are intended by a person charged with a violation of this chapter for use in manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repacking, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of any law of the state. “Drug paraphernalia” includes, but is not limited to, all of the following:

1. Kits intended for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances;

2. Isomerization devices intended for use in increasing the potency of any species of plant which is a controlled substance;

3. Testing equipment intended for use in identifying, or in analyzing the strength, effectiveness or purity of controlled substances;

4. Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, intended for use in cutting controlled substances;

5. Separation gins and sifters intended for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;

6. Blenders, bowls, containers, spoons and mixing devices intended for use in compounding controlled substances;

7. Capsules, balloons, envelopes and other containers intended for use in packaging small quantities of controlled substances;

8. Containers and other objects intended for use in storing or concealing controlled substances; and

9. Objects intended for use in injecting, inhaling, or otherwise introducing marijuana, cocaine, hashish or hashish oil into the human body, such as:

   • a. Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls,

   • b. Water pipes,

   • c. Carburetion tubes and devices,

   • d. Smoking and carburetion masks,

   • e. Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette that has become too small or too short to be held in the hand,

   • f. Miniature cocaine spoons and cocaine vials,

   • g. Chamber pipes,

• h. Carburetor pipes,

  • i. Air-driven pipes,

  • j. Bongs.

In determining whether an object is “drug paraphernalia,” a court or other authority may consider, in addition to all other logically relevant factors, the following:

1. Statement by an owner or by anyone in control of the object concerning its use;

2. The proximity of the object to controlled substances;

3. The existence of any residue of controlled substances on the object;

4. Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver to persons whom he knows intend to use the object to facilitate a violation of the laws of the state relating to controlled substances;

   5. Descriptive materials or instructions, written or oral, accompanying the object, which explain or depict its use;

   6. National and local advertising concerning its use;

   7. The manner in which the object is displayed for sale, including its proximity to other objects falling within the definition of drug paraphernalia;

   8. Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise;

   9. The existence and scope of legitimate uses for the object in the community; and

   10. Expert testimony concerning its use.

• F. “Person” means a natural person or any firm, partnership, association, corporation or cooperative association. (Ord. 2007 § 2, 1982).

A. It is unlawful for any person to maintain or operate any business knowing, or under circumstances where he should reasonably know, that drug paraphernalia is displayed at such business.

B. It is unlawful for any person who is the owner of a business, an employee thereof or who works at such business as an agent of the owner to willfully display drug paraphernalia at such business. (Ord. 2007 § 2, 1982).

It is unlawful for any person to distribute to another person drug paraphernalia, knowing, or under circumstances where he should reasonably know, that it will be used to manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of any law of the state. (Ord. 2007 § 2, 1982).

• A. This chapter shall not apply to any of the following:

  1. Any pharmacist or other authorized person who sells or furnishes drug paraphernalia upon the prescription of a physician, dentist, podiatrist or veterinarian;

  2. Any physician, dentist, podiatrist, or veterinarian who furnishes or prescribes drug paraphernalia to his or her patient;

3. Any manufacturer, wholesaler or retailer licensed by the California State Board of Pharmacy to sell or transfer drug paraphernalia.

B. No provisions of this chapter shall be deemed, whether directly or indirectly, to authorize any act which is otherwise prohibited by any law of the state or require any act which is prohibited by any law of the state. Nor shall any provision of this chapter be deemed, whether directly or indirectly, to prohibit any act or acts which are prohibited by any law of the state.

C. This chapter shall not apply to any currently existing business legally displaying and distributing paraphernalia in accordance with the provisions of CVMC 5.37.010 for a period of one year from the effective date of the ordinance codified in this chapter. Thereafter, the business shall also be deemed to be unlawful, in accordance with the amortization provisions as established by this chapter and Section 1 of Ordinance 2007. (Ord. 2007 § 2, 1982).

A. Any person who violates any provision of this chapter is guilty of a misdemeanor, instead of the infraction penalty attached to the violation of any other provision of this code, and upon conviction of the violation, is punishable by a fine not exceeding $500.00 or by imprisonment in the county jail for a period of not more than six months, or by both such fine and imprisonment. A person who violates the provisions of CVMC 9.17.030 and 9.17.040 shall be deemed to be guilty of a separate offense for each day, or portion thereof, during which the violation continues.

B. A violation of any provision of this chapter is declared to be a public nuisance subject to abatement pursuant to Section 731 of the Code of Civil Procedure. (Ord. 2007 § 2, 1982).

The City Council declares that it would have passed the ordinance codified in this chapter sentence by sentence, paragraph by paragraph, and section by section, and declares that the provisions of the ordinance codified in this chapter are severable, and if for any reason any sentence, paragraph or section of the ordinance codified in this chapter shall be held invalid, such decision shall not affect the validity of the remaining parts of this chapter. ( See Bamboo Brothers v. Carpenter, 133 C.A.3d 116.) (Ord. 2007 § 2, 1982).