Duarte Municipal Code Ch. 6.21 Psychoactive Bath Salts, Psychoactive Herbal Incense and Other Synthetic…

(a) PURPOSE. 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, and death (National Institute on Drug Abuse, DrugFacts: Spice (Synthetic Marijuana) http://www.drugabuse.gov/publications/drugfacts/spice-synthetic-marijuana , accessed June 2014). 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 and intent of this chapter is to provide the city with reasonable measures to address the dangers to the community posed by synthetic drugs that are not regulated by state or federal law by enforcing of the city's administrative, criminal and civil enforcement procedures (set forth in Chapters 1.04 and 1.08 of this code) against any individual who possesses, distributes, or sells synthetic drugs, and by revoking the business license (pursuant to Sections 5.04.240 and 5.04.250 of this code) of any business that knowingly sells synthetic drugs.

(b) FINDINGS. The city of Duarte finds and declares that:

(1) 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 throughout the city, despite the state of California's attempt to ban such drugs under Health and Safety Code Sections 11357.5 and 11375.5. The city further finds that virtually every community in California has recognized the danger of synthetic drugs and their potential lethal consequences.

(2) While California Health and Safety Code Sections 11357.5 and 11375.5 and the federal "Combating Dangerous Synthetic Stimulants Act of 2011" (S.409), the "Dangerous Synthetic Drug Control Act of 2011" (S.605), and the "Combating Designer Drugs Act of 2011" (S.839) (amending the "Controlled Substances Act," 21 USC § 812 et seq.) (collectively, "state and federal synthetic drug laws") prohibit certain compounds that are used to create synthetic drugs, they are not comprehensive enough to eliminate the provision, distribution and sale of synthetic drugs in the city. Specifically, the city finds that the makers of synthetic drugs continually alter the composition of the compounds in their products so as to not come under the purview of state and federal synthetic drug laws and other laws and regulations attempting 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 the compounds specifically banned by Health and Safety Code Section 11375.5. Thus, the city finds that in order to implement an effective measure prohibiting the sale of synthetic drugs, it is necessary to look at all factors related to their sales and marketing to determine if a given product is intended for recreational drug use, in the same or a similar manner as drugs which are banned by state and federal synthetic drug laws, to determine if a given product is in fact a synthetic drug.

(3) Evidence that a given product is a synthetic drug may be found from its intended use, which can be determined from its price, packaging, marketing, and the location and manner in which a given synthetic drug is sold. While the question of whether a given product is being sold or offered for sale for use as a synthetic drug must be evaluated on its specific facts, the city finds that any of the following evidentiary issues, or any combination of the following, may be utilized to determine a given product is in fact a synthetic drug:

(A) 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 approximately thirty-five dollars for an eighth of an ounce (i.e., ten dollars for a one gram), while bona fide glass cleaner is priced at approximately five dollars for twenty-six ounces.

(B) SALES LOCATION. Synthetic drugs are typically sold in liquor stores, smoke shops and gas stations, yet they are marketed as products that are not typically sold at these locations. For example, synthetic drugs are most commonly marketed as bath salts, spice, incense, potpourri, skin treatments, cleaning products, plant food, and other similar products; yet, these types of products are typically not sold at locations such as liquor stores, smoke shops or gas stations.

(C) MARKETING. Synthetic drugs are rarely, if ever, suitable for their marketed uses. For example, synthetic drug may be marketed as a "glass cleaner" even though it cannot reasonably be used for that purpose.

(D) 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 and the like would not bear labels such as "not for human consumption," and would certainly not bear labels allowing only adults to purchase these products. No age limit exists for the purchase of bona fide bath salts, incense or cleaning productions. Of particular relevance are labels that indicate a given product "does not contain the specific chemical compounds banned by Section 11375.5," which no bona fide bath salts, incense, cleaner or the like would have any reason to advertise.

(E) SIMILARITY TO ILLICIT STREET DRUGS. The packaging and brand names for synthetic drug are often designed to make the them appear similar to common street drugs. Many synthetic drugs are sold as white powders packaged in vials (resembling cocaine) or made to appear similar to marijuana. Additionally, brand names are often similar to street slang for these drugs and have no relation to the products that are purportedly being sold, such as bath salts, incense, and the like. These brand names are always changing, but include "Eight Ballz," "Glass Cleaner," "Spice," "Black Mamba," "K-2," "Puff," "Sugar Sticks," "Green Buddha," "Diablo Botanical Incense," "Scooby Snax Potpourri," Grape Ape Herbal Incense," "Aurora Incense," "Three Monkey Incense," "Mr. and Mrs. Marley," "Cloud 9 Incense," and a group of synthetic drugs marketed as from "The Spice Guy."

(4) 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 synthetic drug laws is through the enforcement of the city's administrative, criminal and civil enforcement procedures (set forth in Chapters 1.04 and 1.08 of this code) and through the revocation of a business license (pursuant to Sections 5.04.240 and 5.04.250 of this code).

(5) Because the chemical composition of synthetic drugs is constantly evolving and because determining whether a substance is one of the synthetic drugs prohibited by state and federal synthetic drug laws requires expensive and time consuming chemical tests, it is necessary to look at the facts and circumstances surrounding the possession, distribution or sale of any given substance to determine if it is being sold with the intent that it be used as a synthetic drug; and, further, that evidence of such intent may suffice to determine whether administrative, criminal and civil enforcement procedures are warranted or whether a business license may be revoked.

(6) In order to protect the due process rights of businesses that may believe they are selling legitimate products, not synthetic drugs, a first and second violation of this chapter and Section 5.04.240(b) of this code will result in only a warning and mandatory education courses regarding synthetic drugs, as to allow businesses to ensure they do not sell or otherwise make synthetic drugs available without prior knowledge as to what is considered a synthetic drug for the purposes of this chapter. Any business that continues to operate after having twice been cited for violating the provisions of this chapter and Section 5.04.240(b) of this code poses an immediate threat to public health, safety and welfare and accordingly must be closed during the pendency of any appeal related to violations hereof.

(c) SCOPE. This chapter and subsections 5.04.240(b), (c) of this code shall not apply to any activity already regulated by state and federal synthetic drug laws or any other applicable state or federal law or regulation.

(Ord. No. 848, § 2, 6-24-2014)

For the purpose of this chapter, unless it is plainly evident from the context that a different meaning is intended, the words and phrases used herein shall have the following meaning:

(a) "Business" means the operation of any private, nonprofit or public enterprise for which a city business license is required. Such term, used alone, shall be held and construed to include "business," "profession," "trade," "calling," "occupation," "show," "exhibition," or "game," and all kinds of calling carried on for profit or livelihood.

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

(c) "Distribute", "distributing" or "distribution" means to furnish, give away, exchange, transfer, deliver or supply, whether for monetary gain or not.

(d) "Person" has the same meaning as the term is defined in Section 5.09.020 of this code.

(e) "Possess," "possessing" or "possession" means 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.

(f) "Provide," "providing" or "provision" means offering to distribute or sell a product or substance to any person.

(g) "Psychoactive bath salts" means 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-1-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), 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 (beta-keto-N-methylbenzodioxolylbutanamine), alpha-PPP alpha-pyrrolidinopropiophenone), MPPP (4'-methyl-alpha-pyrrolidinopropiophenone), MDPPP (3',4'-methylenedioxy-alpha-pyrrolidinopropiophenone), alpha-PVP (1-phenyl-2-(1-pyrrolidinyl)-1-pentanone), or naphyrone (1-naphthalen-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 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 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 USC § 81 et seq.) or approved by the Food and Drug Administration ("FDA").

(h) "Psychoactive herbal incense" means 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 (naphthalen-1-yl-(1-pentylindol-3-yl)methanone), JWH-073 (naphthalen-1-yl-(1-butylindol-3-yl)methanone), JWH-200 ((1-(2-morpholin-4-ylethyl)indol-3-yl)-naphthalen-1-ylmethanone), HU-210 ((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), or AM-2201 (1-[(5-fluoropentyl)-1H-indol-3-yl]-(naphthalen-1-yl)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, Pot-Pourri, Buzz, Spice 99, Voodoo, Pulse, Hush, Mystery, Earthquake, Black Mamba, Stinger, 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 UCSA's synthetic drug laws (Health and Safety Code Sections 11357.5, 11375.5 and 11401), regulated by the CSA (21 USC § 81 et seq.) or approved by the FDA.

(i) "Psychoactive or psychotropic stimulant effects" means 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.

(j) "Psychoactive or psychotropic euphoric effects" means 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.

(k) "Sell," "selling" or "sale" means to furnish, exchange, transfer, deliver or supply for monetary gain.

(l) "Synthetic drug" includes psychoactive bath salts and psychoactive herbal incense, as those terms are defined hereinabove.

(Ord. No. 848, § 2, 6-24-2014)

(a) It is unlawful for any person to sell, dispense, distribute, furnish, administer, or give, or offer to sell, dispense, distribute, furnish, administer, or give, any synthetic drug within the city of Duarte.

(b) Merely disclaiming a synthetic drug as "not safe for human consumption" will not avoid the application of this section.

(Ord. No. 848, § 2, 6-24-2014)

(a) It is unlawful for any person to claim or represent that a product that person is providing, distributing or selling is a synthetic drug within the city of Duarte.

(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 business providing, 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 section 11375.5");

(4) The product is significantly more expensive than products that are used for that product's marketed use (such as one gram of a substance marketed as "glass cleaner" costing approximately ten dollars);

(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 section.

(Ord. No. 848, § 2, 6-24-2014)

It is unlawful for any person to possess any synthetic drug within the city of Duarte.

(Ord. No. 848, § 2, 6-24-2014)

(a) REMEDIES CUMULATIVE. The remedies provided by this chapter and Section 5.04.240(c) of this code are cumulative and in addition to any other remedies available at law or in equity.

(b) VIOLATIONS ARE A PUBLIC NUISANCE. Violations of this chapter and Section 5.04.240(b) of this code are hereby declared to be a public nuisance.

(c) REVOCATION OF BUSINESS LICENSE. In addition to any other penalty authorized by law or this code, the business license of any business that violates any provision of this chapter or Section 5.04.240(b) of this code may be revoked pursuant to the procedure set forth in Section 5.04.240(c) of this code.

(d) OTHER PENALTIES AND REMEDIES. Notwithstanding any other penalty provided by this code or otherwise by law, any person who violates any provision of this chapter or Section 5.04.240(b) of this code, is guilty of a misdemeanor for each such violation and, in addition, the city may enforce the provision of this chapter or Section 5.04.240(b) of this code for any violations hereof by means of a criminal or civil enforcement process, including, without limitation, through nuisance abatement proceedings, a restraining order, a preliminary or permanent injunction, or by any other means available in law or equity. Violations of this chapter are also subject to Chapters 1.04 and 1.08 of this code.

(Ord. No. 848, § 2, 6-24-2014)

Any product(s) or substance(s) possessed, provided, distributed or sold in violation of any provision of this chapter or Section 5.04.240(b) of this code may be seized by the enforcing officers and removed and stored in accordance with law.

(Ord. No. 848, § 2, 6-24-2014)