Pismo Beach Municipal Code Ch. 9.05 Sale or Distribution of Certain Synthetic Drugs Prohibited

A. The purpose and intent of this chapter is to provide the city with measures to address the dangers to the community posed by synthetic drugs that are not regulated by state or federal law.

B. The city council finds the dangers of synthetic drugs, which have been documented to cause hallucinations, agitations, psychosis, aggression, suicidal and homicidal ideations, and death, require regulation.

C. This chapter shall not apply to any activity already regulated by state or federal drug laws, or any other applicable state or federal law or regulation.

(Ord. O-2016-001 § 1 (part), 2016)

The definitions and provisions contained in this section shall govern the construction of words and phrases used in this chapter. The definition of each word or phrase shall constitute, to the extent applicable, the definition of each word or phrase which is derived from it, or from which it is a derivative, as the case may be.

A. "Business" shall have the same meaning as the term is defined in Chapter 5.04 of this code.

B. "Distribute," "distributing," and "distribution" shall mean to furnish, give away, exchange, transfer, deliver or supply, whether for monetary gain or not.

C. "Person" shall include any natural person, business, firm, company, corporation, public corporation, club, trust, partnership, association and/or similar organization.

D. "Possess," "possessing," and "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. "Provide," "providing," and "provision" shall mean offering to distribute or sell a product or substance to any person.

F. "Psychoactive bath salts" shall mean 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 substances:

(a) Salvia Divinorum or Salvinorum A; all parts of the plant presently classified botanically as Salvia Divinorum, whether growing or not, the seeds thereof, any extract from any part of such plant, and every compound, manufacture, salts derivative, mixture or preparation of such plant, its seeds or extracts;

(b) Cathinone (2-amino-1-phenyl-1-propanone), 4-methylmethcathinone (2 methylamino-1- (4-methylphenyl)propan-1-one), 4 methoxymethcathinone (1-(4-methoxyphenyl)-2(methylamine)propan-1-o ne), MDPV (methylenedioxypyrovalerone), MDMA (3, 4- methylenedioxy-N-methylamphetamine), methylene (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 (-keto-N-methylbenzodioxolylbutamine), a-PPP (a-pyrrolidinopropiophenone), MPPP(4-methyl- pyrrolidinopropiophenone), MDPPP (3',4' methylenedioxy-apyrrolidinopropiophenon), a-PVP (1-phenyl-2-(1-pyrrolidinyl)-1-pentanone), naphyrone (1-naphthalen-2-yl-2-pyrrolidin-1-ylpentan-1-one ), 6-APDB (6(2aminopropyl)2,3 dihydrobenzo-furan), and analogs of MDA (3,4-methylenedioxymethamphetamine);

(c) Any derivative of the above listed compounds;

(d) Any synthetic substance and its isomers with a chemical structure similar to the above listed compounds;

(e) Any chemical alteration of the above listed compounds; or

(f) 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.

3. 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 §§ 11000 et seq.), listed in one of the UCSA's schedules of controlled substances (Health and Safety Code §§ 11053-11058), regulated by one of the UCSA's Synthetic Drug Laws (Health and Safety Code §§ 11357.5, 11375.5 and 11401), regulated by the Federal Controlled Substances Act (the "CSA") (21 USC §§ 801 et seq.) or approved by the Food and Drug Administration ("FDA").

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), JWH-018 (naphthalen-1-yl-(1-pentylindol-3-yl) methanone), JWH-073 (naphthalen-l-yl-(1-butylindol-3-yl)methanone), JWH-200 (1-(2-morpholin-4-ylethyl)indol-3-yl) naphthalen-1-ylmethanone, HU-210 or 1.1-dimethylheptyl- 11-hydroxy-delta8-tetrahydrocannabinol) (6aR,10aR)-9- (Hydroxymethyl)- 6,6 dimethyl-3-(2-mehtyloctan-2-yl)- 6a ,7, 10, 10a tetra-hydrobenzo[c] chromen-1-ol), CP 47, 497 (2-[(1R,3S)-3- hydroxycyclohexyl]-5-(2-methyloctan- 2-yl)phenol) and the dimethylhexyl, dimethyloctyl and dimethylnonyl homologues of CP-47, 497, AM-2201 (1-[(5- fluoropentyl)-1H-indol-3-yl]-(naphthalen-1-yl)me thanone), 1-Pentyl-3 (2- methoxyphenylacetyl)indole (also known as JWH-250), 1-Hexyl-3-(1- naphthoyl)indole (also known as JWH-019), 1-Pentyl-3-(4-chloro-1-naphthoyl)indole (also known as JWH-398), N-benzylpiperazine (also known as BZP), 1-(3-trifluoromethylphenyl) piperazine (also known as TFMPP);

(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 other synthetic cannabinoid; and

2. Products that elicit psychoactive psychotropic euphoric effects and are marketed under any of the following trade names: Scooby Snax, K2, K3, Spice, Genie, Smoke, Potpourri, Buzz, Spice 99, Voodoo, Pulse, Hush, Mystery, Earthquake, Stinger, Ocean Blue, Serenity, Fake Weed, and Black Mamba.

3. The term "psychoactive herbal incense" 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 §§ 11000 et seq.), listed in one of the UCSA's schedules of controlled substances (Health and Safety Code §§ 11053-11058), regulated by one of the UCSA's Synthetic Drug Laws (Health and Safety Code §§ 11357.5, 11375.5 and 11401), regulated by the Federal Controlled Substances Act (the "CSA") (21 USC §§ 801 et seq.) or approved by the Food and Drug Administration ("FDA").

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," and "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. O-2016-001 § 1 (part), 2016)

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

B. The enforcing officer may consider any of the following evidentiary factors to determine if the product is a synthetic drug:

1. The product is not suitable for its marketed use (such as crystalline or powder being marketed as "glass cleaner");

2. 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 11357.5");

3. The product resembles an illicit street drug (such as cocaine, methamphetamine or marijuana); or

4. The product's name or packaging uses images or slang referencing an illicit drug.

(Ord. O-2016-001 § 1 (part), 2016)

A. The storage, provision, sale, or distribution of any synthetic drug from any property, structure, or building in the city and any possession of any synthetic drug in the city is declared to be a public nuisance.

B. Civil remedies available; remedies cumulative. In addition to the penalties provided in Title 12, any violation of any provision of this chapter shall constitute a public nuisance and may be abated by the city by civil process by means of a restraining order, a preliminary or permanent injunction, or in any manner provided by law for the abatement of such nuisance. All remedies herein are cumulative and non-exclusive.

(Ord. O-2016-001 § 1 (part), 2016)

Because the use of synthetic drugs has been documented to cause hallucinations, agitation, psychosis, aggression, suicidal and homicidal ideations, cannibalism, 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. Any police officer who issues a criminal citation under this chapter shall confiscate any synthetic drugs and store them, pending the conclusion of the criminal case.

(Ord. O-2016-001 § 1 (part), 2016)

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 chapter by the holder of a validly issued city business license shall constitute grounds for suspension or revocation of a business license in accordance with the procedures set forth in Title 3 of this code.

(Ord. O-2016-001 § 1 (part), 2016)

A. Failure to comply with any of the requirements of this chapter is a misdemeanor punishable by imprisonment in the county jail for a period not exceeding six months, or by fine not exceeding one thousand dollars, or by both, provided that the city attorney may specify in the accusatory pleading that the offense shall be an infraction if he/she determines that such action would be in the interest of justice.

B. Each person committing, causing, or maintaining a violation of this chapter or failing to comply with the requirements set forth herein shall be deemed guilty of a separate offense for each and every day during any portion of which any violation of any provision of this chapter is committed, continued, maintained, or permitted by such person and shall be punished accordingly.

(Ord. O-2016-001 § 1 (part), 2016)

Any products or substances possessed in violation of any provision of this chapter shall be seized and stored in accordance with law.

(Ord. O-2016-001 § 1 (part), 2016)

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

B. This chapter shall not apply to drugs or substances that are prohibited by state or federal law, including without limitation, the State Synthetic Drug Laws, and the Federal Controlled Substances Act.

C. This chapter shall not be deemed to prohibit any act that is permitted, prohibited, or preempted by any state or federal law or regulation.

(Ord. O-2016-001 § 1 (part), 2016)