Rialto Municipal Code Ch. 9.43 Psychoactive Bath Salts, Psychoactive Herbal Incense, and Other…

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Editor's note— Ord. No. 1530, § 1, adopted June 25, 2013, amended Chapter 9.43 in its entirety to read as herein set out. Former Chapter 9.43, §§ 9.43.010—9.43.070, pertained to controlled substances, and derived from Ord. No. 1489, adopted July 26, 2011.

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 these 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 Section 11375.5 ("Section 11375.5") and the federal government's attempt to ban such drugs under the Controlled Substances Act (the "CSA") (21 U.S.C. Section 81, et seq.). The city council further finds that the dangers of synthetic drugs, which have been documented to cause hallucinations, agitation, psychosis, aggression, suicidal and homicidal ideations, cannibalism, and death, require regulation.

C. While Section 11375.5 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 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 Section 11375.5, the CSA and other laws 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 the compounds specifically banned by Section 11375.5. Thus, the city council finds that this chapter is necessary to implement effective measures to prohibit the distribution and sale of synthetic drugs.

D. 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 enforcement of the city's administrative, criminal, and civil enforcement procedures (set forth in Chapters 1.10 and 1.16 of the Rialto Municipal Code) and through the suspension or revocation of business licenses (pursuant to Section 5.04.285 of the Rialto Municipal Code). This chapter shall not apply to any activity already regulated by Health and Safety Code Section 11375.5, the CSA, or any other applicable state or federal law or regulation.

(Ord. No. 1530, § 1, 6-25-13)

"Business" shall have the same meaning as the term is defined in Section 5.04.020 of this municipal code.

"Consume," "consuming," and "consumption" shall mean to ingest, inhale, inject, smoke or snort (insufflate).

"Distribute," "distributing," and "distribution" shall mean 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" 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.

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

"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. Cathinone (S)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-one), 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 03-keto-N-methylbenzodioxolylbutanamine), a-PPP (a-pyrrolidinopropiophenone), MPPP (4-methyl-a-pyrrolidinopropiophenone), MDPPP (3',4'-methylenedioxy-a-pyrrolidinopropiophenone), a-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 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; 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.

"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. 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. 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);

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;

f. Any other substantially similar chemical structure or compound; or

g. Any other synthetic cannabinoid; 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, Potpouri, Buzz, Spice 99, Voodoo, Pulse, Hush, Mystery, Earthquake, Black Mamba, Stinger, Ocean Blue, Stinger, Serenity, Fake Weed, and Black Mamba.

"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.

"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.

"Sell," "selling," and "sale" shall mean 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. No. 1530, § 1, 6-25-13)

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

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 of Rialto.

(Ord. No. 1530, § 1, 6-25-13)

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

B. Civil Remedies Available; Remedies Cumulative. In addition to the penalties provided in Section 9.43.070, 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 non-exclusive.

C. Attorneys' Fees. Any person, including the city of Rialto, who prevails in any action or proceeding for the abatement of a public nuisance as provided herein shall be entitled to recover attorneys' fees incurred in any such action or proceeding.

(Ord. No. 1530, § 1, 6-25-13)

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. No. 1530, § 1, 6-25-13)

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 Section 5.04.285 of this municipal code.

(Ord. No. 1530, § 1, 6-25-13)

A. Misdemeanor Violation. 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 months or by fine not exceeding one thousand dollars, 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. Separate Offense. 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.

C. Additional Penalties; Costs of Abatement. In any administrative, civil, or criminal proceeding involving the abatement of a public nuisance, the city shall also be entitled to recover its full reasonable costs of abatement, including, but not limited to, investigation, analysis, and prosecuting the enforcement against the responsible party.

(Ord. No. 1530, § 1, 6-25-13)

Any product(s) or substance(s) possessed, provided, distributed, or sold in violation of any provision of this chapter shall be seized and stored in accordance with law.

(Ord. No. 1530, § 1, 6-25-13)

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, California Health and Safety Code Section 11375.5 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. No. 1530, § 1, 6-25-13)