Chapter 9.08 — DRUG PARAPHERNALIA

The illegal use of controlled substances within the incorporated area of the town 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 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 general welfare of the citizens of the town.

The proliferation of the display of drug paraphernalia in retail stores within the town, and the distribution of such paraphernalia would intensify and otherwise compound 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 practical. The person who displays or distributes would have difficulty determining who could lawfully view or receive drug paraphernalia. The already thinly staffed law enforcement agencies would be subjected to intolerable 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 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 drug abuse which the display and distribution of drug paraphernalia creates.

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

(Ord. 42 § 1, 1981)

For the purposes of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section:

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 the sections exist as of the effective date of the ordinance codified in this chapter or may thereafter be amended.

C.

"Display" means to show to 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:

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;

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

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

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

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

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

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

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

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

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

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, and

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:

Statements by an owner or by anyone in control of the object concerning its use;

The proximity of the object to controlled substances;

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

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;

Instructions, oral or written, provided with the object concerning its use;

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

National and local advertising concerning its use;

The manner in which the object is displayed for sale;

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

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

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. 42 §2, 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 who works at such business as an agent of the owner, to wilfully display drug paraphernalia at such business. (Ord. 42 §3, 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. 42 §4, 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. 42 §5, 1981)

Whenever any act is prohibited by this chapter, or is made or declared to be unlawful, or an offense, or the doing of any act is required or the failure to do any act is declared to be unlawful, the violation shall be punished by a fine not exceeding five hundred dollars or imprisonment for a term not exceeding six months, or by both such fine and imprisonment; provided, nevertheless, that any such aforesaid violation or offense may be deemed an infraction as defined by Section 19C of the California Penal Code and charged as such in the discretion and at the election of the town prosecuting attorney, in which event the punishment therefor shall not be imprisonment, but a fine not to exceed the amounts specified by Government Code Section 36900 as then in effect. Every day any violation of any provision of this chapter continues constitutes a separate offense. (Ord. 76 §6, 1982: Ord. 42 §7, 1981)