Redlands Municipal Code Ch. 9.36 Psychoactive Bath Salts, Psychoactive Herbal Incense, and Other…

A. 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, cannibalism, and death. 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 scope of those laws and regulations. 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. 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 11375.5 (banning synthetic stimulant compounds and derivatives) and 11401 (banning "analogs" of controlled substances) (collectively "state synthetic drug laws"), and the federal government's attempt to ban such drugs under the controlled substances act (the "CSA") (21 USC § 81 et seq.). The city council further finds that the dangers of synthetic drugs, which have been documented to cause hallucinations, agitations, psychosis, aggression, suicidal and homicidal ideations, cannibalism, and death, require regulation.

C. While the state synthetic drug laws and the CSA prohibit certain compounds that are used to create synthetic drugs, they are not comprehensive enough to eliminate the distribution and sale of all synthetic drugs in the city. Specifically, the city council finds that the makers of synthetic drugs continually alter the composition of the compounds in their products so as to not come under the prohibition of the state synthetic drug laws, the CSA, and other law and regulations that attempt 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 compounds specifically banned by the state synthetic drug laws. Thus the city council finds that in order to implement an effective measure prohibiting the distribution and sale of synthetic drugs, it is necessary to look at all factors related to the sales and marketing of synthetic drugs. These factors will help city officials determine whether a product that does not come under the purview of state synthetic drug laws or the CSA is nevertheless a synthetic drug because it is intended for recreational drug use.

D. While the question of whether a given product is being distributed or sold for use as a recreational drug must be determined on a case by case basis, the city council finds that the following evidentiary factors are helpful in determining whether a given product is in fact a synthetic drug:

1. Marketing: Synthetic drugs are rarely, if ever, suitable for their marketed uses. For example, a synthetic drug in the form of a powder might be marketed as a "glass cleaner", even though the powder cannot reasonably be used to clean glass.

2. Sales Location: Synthetic drugs are typically sold in liquor stores, smoke shops and gas stations, yet synthetic drugs are marketed as products that are not typically sold by these businesses. For example, synthetic drugs are often marketed as bath salts, spice, incense, potpourri, skin treatments, cleaning products and plant food; however, these types of products are typically not sold in liquor stores, smoke shops or gas stations.

3. 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, cleaning products and the like do not typically bear such labels. Of particular relevance are labels that indicate a given product does not contain chemical compounds banned by state synthetic drug laws, which bona fide bath salts, incense, cleaning products and the like would not have any reason to advertise.

4. 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 fifty dollars ($50.00) for an eighth (1/8) of an ounce, while bona fide glass cleaner is priced at approximately five dollars ($5.00) for twenty six (26) ounces.

5. Similarity To Illicit Street Drugs: Synthetic drugs often resemble illicit street drugs and/or use brand names and packaging that are designed to make the product appear similar to illicit drugs. For example, many synthetic drugs are sold as white powders packaged in vials (resembling cocaine) or dyed green to appear similar to marijuana. Additionally, brand names are often similar to street slang for illicit drugs and have no relation to the products that are purportedly being sold. These brand names are always changing, but include "Eight Ballz", "Spice", "Black Mamba", "K-2", "Puff", "Sugar Sticks", "Green Buddha", "Diable Botanical Incense", "Scooby Snax Potpourri", "Grape Ape Herbal Incense", "Three Monkey Incense", "Mr. And Mrs. Marley", "Cloud 9 Incense", and a group of synthetic drugs marketed as from "The Spice Guy".

E. 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 law is through the administrative, civil and criminal enforcement procedures set forth in title 1, chapter 1.22 and title 8, chapter 8.04 of this code. This chapter shall not apply to any activity already regulated by the state synthetic drug laws, the CSA, or any other applicable state or federal law or regulation. (Ord. 2795, 2013)

BUSINESS: Shall have the same meaning as the term is defined in section 5.04.020 of this code.

CONSUME, CONSUMING, AND CONSUMPTION: To ingest, inhale, inject, smoke or snort (insufflate).

DISTRIBUTE, DISTRIBUTING, AND DISTRIBUTION: To furnish, give away, exchange, transfer, deliver or supply, whether for monetary gain or not.

PERSON: Shall include any natural person, business, firm, company, corporation, public corporation, club, trust, partnership, association and/or similar organization.

POSSESS, POSSESSING, AND POSSESSION: 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.

PROVIDE, PROVIDING, AND PROVISION: Offering to distribute or sell a product or substance to any person.

PSYCHOACTIVE BATH SALTS: 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:

A. Products that elicit psychoactive or psychotropic stimulant effects and contain any of the following substances:

1. 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;

2. Cathinone (2-amino-1-phenyl-1-propane), 4- methylmethcathinone (2-methylamino-1-(4- methylphenyl)propan-1-one), 4-methoxymethcathinone (1-(4-methoxyphenyl)-2-(methylamine)propan-1-one), MDPV (methylenedioxypyrovalerone), 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 ß-keto-N- methylbenzodioxolylbutamine), a-PPP (a- pyrrolidinopropiophenone), MPPP (4-methyl-a- pyrrolidinopropiophenone), MDPPP (3',4'- methylenedioxy-a-pyrrolidinopropiophenone), -PVP (1-phenyl-2-(1-pyrrolidinyl)-1-pentanone) or naphyrone (1-naphthalen-2-yl-2-pyrrolidin-1- ylpentan-1-one);

3. Any derivative of the above listed compounds;

4. Any synthetic substance and its isomers with a chemical structure similar to the above listed compounds;

5. Any chemical alteration of the above listed compounds; or

6. Any other substantially similar chemical structure or compound; and

B. 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.

PSYCHOACTIVE HERBAL INCENSE: 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:

A. Products that elicit psychoactive or psychotropic euphoric effects and contain any of the following substances:

1. 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-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) and the dimethylhexyl, dimethyloctyl and dimethylnonyl homologues of CP- 47, 497, AM-2201 (`1-[(5-fluoropentyl)-1H-indol-3- yl]-(naphthalen-1-yl)methanone), 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);

2. Any derivative of the above listed compounds;

3. Any synthetic substance and its isomers with a chemical structure similar to the above listed compounds;

• 4. Any chemical alteration of the above listed compounds;
• 5. Any other substantially similar chemical structure or compound; or
• 6. Any other synthetic cannabinoid; and

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

PSYCHOACTIVE OR PSYCHOTROPIC EUPHORIC EFFECTS: 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.

PSYCHOACTIVE OR PSYCHOTROPIC STIMULANT EFFECTS: 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.

SELL, SELLING, AND SALE: To furnish, exchange, transfer, deliver, or supply for monetary gain.

SYNTHETIC DRUG: Shall include "psychoactive bath salts" and "psychoactive herbal incense", as those terms are defined hereinabove. (Ord. 2795, 2013)

A. It is unlawful for any person to possess, store, provide, distribute, or sell any synthetic drug within the city.

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

C. It is unlawful for any person to store, provide, sell, or distribute or to permit the storage, provision, sale or distribution of synthetic drugs from any real property owned, possessed, managed, or controlled by that person in the city.

D. 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 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 Health And Safety Code section 11375.5");

4. The product is significantly more expensive than products that are used for that product's marketed use (such as a half of a gram of a substance marketed as "glass cleaner" costing $50.00);

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 drug (such as "Eight Ballz" or "Green Buddha"). (Ord. 2795, 2013)

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

B. Civil Remedies Available; Remedies Cumulative: In addition to the penalties provided in section 9.36.070 of this chapter, any property used in 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 nonexclusive.

C. Attorney Fees: Any person, including the city, who prevails in any action or proceeding for the abatement of a public nuisance as provided herein shall be entitled to recover attorney fees incurred in any such action or proceeding. (Ord. 2795, 2013)

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. 2795, 2013)

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 5, chapter 5.04 of this code. (Ord. 2795, 2013)

A. Failure to comply with any of the requirements of this chapter is a misdemeanor punishable by imprisonment in the city or county jail for a period not exceeding six (6) months or by fine not exceeding one thousand dollars ($1,000.00), or by both, provided that where the city attorney determines that such action would be in the interest of justice, he/she may specify in the accusatory pleading that the offense shall be an infraction.

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 punishable accordingly. (Ord. 2795, 2013)

Any products or substances possessed, provided, distributed, or sold in violation of any provision of this chapter shall be seized and stored in accordance with law. (Ord. 2795, 2013)

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. 2795, 2013)