Exeter Municipal Code Ch. 9.24 Drug Paraphernalia

The illegal use of controlled substances within the city creates serious social, medical and law enforcement problems. The illegal use of such substances by persons under eighteen years of age has reached crisis dimensions. It is causing serious physical and psychological damage to the youth of this community, an impairment of educational achievement and of the efficiency of the educational system, increases in nondrug 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 the city.

The proliferation of the display of drug paraphernalia in retail stores within the city, and the distribution of such paraphernalia intensifies and otherwise compounds the problem of illegal use of controlled substances within this community.

A ban only upon the display and distribution of drug paraphernalia to persons under eighteen years of age would not be effective. The person who displayed or distributed would have difficulty determining who could lawfully view or receive drug paraphernalia. The already thinly staffed law enforcement agencies would be subjected to added enforcement burdens by adding age of a person who views or receives paraphernalia as an element of a prohibition upon display and distribution. A significant number of high school students are eighteen years of age or older. It would be lawful to distribute paraphernalia to some students attending the same school in which the distribution to other students was prohibited. Permitted display and distribution to adults within the community symbolizes 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 drug abuse which the display and distribution of drug paraphernalia create.

This chapter is a measure which is necessary in order to discourage the illegal use of controlled substances within the city.

(Ord. 447 §1(part), 1981)

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 11058 of the California Health and Safety Code, identified as Schedules I through V, inclusive, as said sections now exist or may hereafter be amended.

C. "Display" means to show a patron or place in a manner so as to be available for viewing or inspection by a patron.

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 planting, propagating, cultivating, growing, harvesting, 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 planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;

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

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

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

5. Scales and balances intended for use in weighing or measuring controlled substances;

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

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

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

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

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

11. 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. Carburation tubes and devices,

d. Smoking and carburation masks,

e. Roach clips, meaning objects used to hold burning materials, such as a marijuana cigarette that has become to 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. Statements 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. Instructions, oral or written, provided with the object concerning its use;

6. Descriptive materials accompanying the object which explain or depict its use;

7. National and local advertising concerning its use;

8. The manner in which the object is displayed for sale;

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

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

11. Expert testimony concerning its use.

F. "Patron" means a person who enters a business for the purpose of purchasing or viewing as a shopper merchandise offered for sale at the business.

G. "Person" means a natural person or any firm, partnership, association, corporation or cooperative association.

(Ord. 447 §1(part), 1981)

A. Except as authorized by law, it is unlawful for any person to wilfully maintain or operate any business knowing, or under circumstances where one reasonably should know, that drug paraphernalia is displayed at such business.

B. Except as authorized by law, it is unlawful for any person who is the owner of a business, an employee thereof or one who works at such business as an agent of the owner, to wilfully display drug paraphernalia at such a business.

(Ord. 447 §1 (part), 1981)

Except as authorized by law, it is unlawful for any person to wilfully distribute to another person drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, 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. 447 §1 (part), 1981)

No provision 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 otherwise 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.

(Ord. 447 §1 (part), 1981)

If any provision of this chapter, or the application thereof, to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

(Ord. 447 §1 (part), 1981)

Any person who violates any provision of this chapter is guilty of an infraction, and upon conviction is punishable by:

A. A fine not exceeding fifty dollars for a first violation;

B. A fine not exceeding one hundred dollars for a second violation of this chapter within one year;

C. A fine not exceeding two hundred fifty dollars for each additional violation of this chapter within one year.

A person who violates the provisions of Section 9.20.030 shall be deemed to be guilty of a separate offense for each day, or portion thereof, during which the violation continues. A person who violates the provisions of Section 9.20.040 shall be guilty of a separate offense for each item of drug paraphernalia which is distributed.

(Ord. 447 §1 (part), 1981)

Nothwithstanding any provision contained in this code to the contrary, violation of the provisions of this chapter shall constitute grounds for revocation of any business license issued pursuant to the provisions of Chapter 5.04 of this code to a business upon the premises of which the violation has occurred. The following provisions of this section shall constitute the exclusive procedures and standards for the commencement and conduct of business license revocation proceedings upon such grounds and no other provision of this code shall be applicable to such a revocation.

A. Revocation proceedings shall be commenced upon the filing with the city clerk of a written application by the chief of police operations asserting that there are grounds for revocation of a business license as a result of violation of the provisions of this chapter, and stating the circumstances of each violation which the chief alleges has occurred. A copy of the application shall be mailed by the chief to the holder of the business license not later than the date on which the application is filed with the city clerk.

B. If, not later than fifteen calendar days following the date of filing the application by the chief, the city council does not order a hearing thereon, the application shall be deemed dismissed. Such a dismissal shall not be deemed to preclude a new application by the chief alleging the same violations as a basis for revocation.

C. Any hearing ordered by the city council shall be conducted by a hearing officer of the state office of administrative hearings. The application shall be transmitted to the office of administrative hearings, and the hearing shall be scheduled by and through that office, with due notice to the holder of the business license.

D. The chief of police operations shall carry the burden of proof during any such hearing. A conviction for violation of the provisions of this chapter shall not constitute a condition precedent to establishment of grounds for revocation if proof of actual violation by a preponderance of the evidence is made.

E. The representative of the office of administrative hearings shall prepare findings of fact, conclusions of law, and a recommended decision. The decision shall be transmitted to the city clerk.

F. Not later than fifteen calendar days after receipt of the findings, conclusions and recommendation by the office of administrative hearings, the city council shall commence consideration of the findings, conclusions, and recommendations. The city council shall be authorized to act upon the recommendation without another hearing or receipt of further evidence or argument, or may schedule a subsequent hearing on a de novo basis, or may conduct a limited hearing for the purpose of receiving argument only or supplementary evidence. The city council shall not be authorized to disregard the findings of fact or substitute new findings of fact unless it orders a transcript of the hearing conducted before the hearing officer and makes new factual findings, or conducts a new hearing on a de novo basis or limited hearing for the purpose of receiving supplementary evidence. The city council shall be authorized to accept in whole or in part or reject in whole or in part any recommendation by the representative of the office of administrative hearings, and shall be authorized to either dismiss the proceedings, permanently revoke the business license or temporarily suspend the business license during such period of time as it deems appropriate. Alternatively, the city council shall be authorized to order the business to remain in effect, but subject to such conditions in relation to proven charges, as the city council deems appropriate.

G. The provisions of the California Administrative Procedure Act shall not be applicable to any proceeding commenced and conducted pursuant to the provisions of this chapter. Technical rules of evidence shall not be applicable to proceedings conducted under this chapter, except as necessary to guarantee compliance with the requirements of procedural due process.

(Ord. 447 §1(part), 1981)