San Diego Municipal Code Div. 33 Manufacturing, Sale, Distribution, and Possession of Federal Schedule I

Drugs, Novel Synthetic Drugs, and Novel Psychoactive Drugs (“Manufacturing, Sale, Distribution, and Possession of Federal Schedule I Drugs, Novel Synthetic Drugs, and Novel Psychoactive Drugs” added 6-14-2016 by Emergency Ordinance O-20660 N.S.; effective 6-14-2016.) (“Manufacturing, Sale, Distribution, and Possession of Federal Schedule I Drugs, Novel Synthetic Drugs, and Novel Psychoactive Drugs” added 6-15-2016 by O-20657 N.S.; effective 7-15-2016.)

The Council for the City of San Diego finds and declares that:

(a) Use of Federal Schedule I Drugs, Novel Synthetic Drugs, and Novel
Psychoactive Drugs has been documented to cause effects such as
hallucinations, agitation, psychosis, aggression, suicidal ideations and death, a
significant increase in medical aid emergencies, and may also lead to an
increase in associated criminal activity. Some of these drugs are commonly
known as “spice” or “bath salts.”

(b) Although state and federal laws prohibit some synthetic drugs, drug makers
continually alter the composition of the compounds in their products so as to
escape the purview of the law.

(c) While newly created drugs often go unregulated in California for years, many
new drugs receive emergency scheduling in the federal drug schedules within
months of their discovery.

(d) The purpose and intent of this Division is to provide the City with reasonable
measures to address the dangers to the community posed by Federal Schedule
I Drugs, Novel Synthetic Drugs, and Novel Psychoactive Drugs.

(e) This Division is not intended to apply to any drug or chemical compound
already regulated or prohibited by California law or approved by the United
States Food and Drug Administration and dispensed or possessed in
accordance with state and federal law.
(“Purpose and Intent” added 6-14-2016 by Emergency Ordinance O-20660 N.S.;
effective 6-14-2016.)
(“Purpose and Intent” added 6-15-2016 by O-20657 N.S.; effective 7-15-2016.)

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For purposes of this Division, defined terms appear in italics. The following definitions apply in this Division:

Analog(s) means either of the following:

(a) A substance the chemical structure of which is substantially similar to the
chemical structure of a Federal Schedule I Drug, a Novel Synthetic Drug, or a
Novel Psychoactive Drug; or

(b) A substance which has, is represented as having, or is intended to have a
stimulant, depressant, or hallucinogenic effect on the central nervous system
that is substantially similar to, or greater than, the stimulant, depressant, or
hallucinogenic effect on the central nervous system of a Federal Schedule I
Drug, a Novel Synthetic Drug, or a Novel Psychoactive Drug.

Distribute, distributing, or distribution means to furnish, give away, exchange,
transfer, deliver or supply, whether or not for monetary gain.

Federal Schedule I Drug(s) means any drug scheduled in Schedule I, as listed in 21
C.F.R. § 1308.11, as may be amended from time to time, and any analog of these
drugs, that is not regulated or prohibited by state law.

Manufacture and manufacturing have the same meaning as in 21 U.S.C. § 802(15).

Novel Psychoactive Drug means any compound, mixture, preparation, or substance,
or its analog (including salts, isomers, esters, ethers, and salts of isomers), containing
substances which have a psychedelic, psychotropic, hallucinogenic or other effect on
the central nervous system or brain similar to the effect of any Federal Schedule I
Drug or Federal Schedule II Drug, as listed in 21 C.F.R. §§ 1308.11 – 1308.12, not
otherwise regulated or prohibited by state law. Examples of Novel Psychoactive
Drugs include:

1. 1-[1-(3-methoxyphenyl)cyclohexyl]-piperidine

2. 1-(3-chlorophenyl)piperazine

3. 1-(4-bromofuro[2,3-f][1]benzofuran-8-yl)propan-2-amine

4. 1,4-dibenzylpiperazine

5. 1-(4-methoxyphenyl)piperazine

6. 1-[4-(trifluoromethylphenyl)]piperazine

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7. 1-(5-methoxy-1H-indol-3-yl)propan-2-amine

8. 1-(thiophen-2-yl)-2-methylaminopropane

9. (2-aminopropyl)-2,3-dihydrobenzofuran)

10. (2-aminopropyl)benzofuran

11. 2-(2-chlorophenyl)-2-(ethylamino)cyclohexanone

12. 2-(2.5-dimethoxy-4-(methylthio)phenyl)ethanamine

13. 2-(2,5-dimethoxyphenyl)-N-[(2-methoxyphenyl)methyl]ethanamine

14. 2,3-dihydro-1H-inden-2-amine

    15. 2-(4-bromo-2,3,6,7-tetrahydrofurobensofuran-8-yl)-1-methyl-
    ethylamine

    16. 2-(4-bromo-2,5-dimethoxyphenyl)ethanamine

    17. 2-(4-bromo-2,5-dimethoxyphenyl)-N-[(2-
    methoxyphenyl)methyl]ethanamine

    18. 2-(4-chloro-2,5-dimethoxyphenyl)-N-[(2-
    methoxyphenyl)methyl]ethanamine

    19. 2-(4-iodo-2,5-dimethoxyphenyl)-N-
    [(2-fluorophenyl)methyl]ethanamine

    20. 2-(4-iodo-2,5-dimethoxyphenyl)-N-[(2-
    methoxyphenyl)methyl]ethanamine

    21. 2-(4-iodo-2,5-dimethoxyphenyl)-N-[(2,3-
    methylenedioxyphenyl)methyl]ethanamine

    22. 2-(4-trifluoromethyl-2,5-dimethoxyphenyl)-N-[(2-
    methoxyphenyl)methyl]ethanamine

    23. 2,5-dimethoxy-4-bromoamphetamine

    24. 2,5-dimethoxy-4-chloroamphetamine

    25. 2,5-dimethoxy-4-ethylthiophenethylamine

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89. (R)-3-(N-methylpyrrolidin-2-ylmethyl)-5-methoxyindole

90. (R,S)2-(3-methoxyphenyl)-2-(ethylamino)cyclohexanone

91. Valerylfentanyl [N-(1-phenethylpiperidin-4-yl)-N-phenypentanamide]

Novel Synthetic Drug means any Synthetic Cannabinoid or Synthetic Cathinone not
regulated or prohibited by state law.

Property Owner has the same meaning as in Municipal Code section 11.0210.

Public Nuisance has the same meaning as in Municipal Code section 11.0210.

Responsible Person has the same meaning as in Municipal Code section 11.0210.

Sell, selling, or sale means to furnish, exchange, transfer, deliver, or supply for
monetary gain.

Synthetic Cannabinoid(s) means:

(a) Any chemical compound which is not approved by the United States Food and Drug Administration or, if approved, which is not dispensed or possessed in accordance with state and federal law, that contains 1,1-dimethylheptyl-11- hydroxytetrahydrocannabinol (HU-210); 1-butyl-3-(1-naphthoyl)indole; 1- pentyl-3-(1-naphthoyl)indole; dexanabinol (HU-211); or any compound in the following structural classes:

(1) Naphthoylindoles: Any compound containing a
3-(1-naphthoyl)indole structure with substitution at the nitrogen atom
of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl,
cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-
morpholinyl)ethyl group, whether or not further substituted in the
indole ring to any extent and whether or not substituted in the naphthyl
ring to any extent. Examples of this structural class include JWH-015,
JWH-018, JWH-019, JWH-073, JWH-081, JWH-122, JWH-200, and
AM- 2201;

(2) Phenylacetylindoles: Any compound containing a
3-phenylacetylindole structure with substitution at the nitrogen atom
of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl,
cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-
morpholinyl)ethyl group whether or not further substituted in the
indole ring to any extent and whether or not substituted in the phenyl
ring to any extent. Examples of this structural class include JWH-167,
JWH-250, JWH-251, and RCS-8;

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(3) Benzoylindoles: Any compound containing a 3-(benzoyl)indole
structure with substitution at the nitrogen atom of the indole ring by an
alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-
methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether
or not further substituted in the indole ring to any extent and whether
or not substituted in the phenyl ring to any extent. Examples of this
structural class include AM-630, AM-2233, AM-694, Pravadoline
(WIN 48,098), and RCS-4;

(4) Cyclohexylphenols: Any compound containing a 2-(3-
hydroxycyclohexyl)phenol structure with substitution at the 5-position
of the phenolic ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl,
cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-
morpholinyl)ethyl group whether or not substituted in the cyclohexyl
ring to any extent. Examples of this structural class include CP 47,497
and its C8 homologue (cannabicyclohexanol);

(5) Naphthylmethylindoles: Any compound containing a 1H-indol-3-yl-
(1-naphthyl) methane structure with substitution at the nitrogen atom
of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl,
cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-
morpholinyl)ethyl group whether or not further substituted in the
indole ring to any extent and whether or not substituted in the naphthyl
ring to any extent. Examples of this structural class include JWH-175,
JWH-184, and JWH-185;

(6) Naphthoylpyrroles: Any compound containing a 3-(1-
naphthoyl)pyrrole structure with substitution at the nitrogen atom of
the pyrrole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl,
cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-
morpholinyl)ethyl group whether or not further substituted in the
pyrrole ring to any extent and whether or not substituted in the
naphthyl ring to any extent. Examples of this structural class include
JWH-030, JWH-145, JWH-146, JWH-307, and JWH-368;

(7) Naphthylmethylindenes: Any compound containing a 1-(1-
naphthylmethyl)indene structure with substitution at the 3-position of
the indene ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl,
cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-
morpholinyl)ethyl group whether or not further substituted in the
indene ring to any extent and whether or not substituted in the
naphthyl ring to any extent. Examples of this structural class include
JWH-176; or

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(8) Indazoles: Any compounds with indazole scaffolds and featuring L-
valinamide or L-tert-leucinamide side chains such as N-(1-adamantyl)-
1-pentyl-1H-indazole-3-carboxamide (APINACA).

(b) This definition includes any analogs of the chemical compounds listed in
subsection (a).

Synthetic Cathinone means:

(a) Any chemical compound which is not approved by the United States Food
and Drug Administration or, if approved, which is not dispensed or possessed
in accordance with state and federal law, not including bupropion, structurally
derived from 2-aminopropan-1-one by substitution at the 1-position with
either phenyl, naphthyl, or thiophene ring systems, whether or not the
compound is further modified in one or more of the following ways:

(1) By substitution in the ring system to any extent with alkyl,
alkylenedioxy, alkoxy, haloalkyl, hydroxyl, or halide substituents,
whether or not further substituted in the ring system by one or more
other univalent substituents. Examples of this class include 3,4-
methylenedioxycathinone (bk-MDA);

(2) By substitution at the 3-position with an acyclic alkyl substituent.
Examples of this class include 2-methylamino-1-phenylbutan-1-one
(Buphedrone);

(3) By substitution at the 2-amino nitrogen atom with alkyl, dialkyl,
benzyl, or methoxybenzyl groups, or by inclusion of the 2-amino
nitrogen atom in a cyclic structure. Examples of this class include
Dimethylcathinone, Ethcathinone, and α-Pyrrolidinopropiophenone
(α-PPP).

(b) This definition includes any analogs of the chemical compounds listed in
subsection (a).
(“Definitions” added 6-14-2016 by Emergency Ordinance O-20660 N.S.; effective
6-14-2016.)
(“Definitions” added 6-15-2016 by O-20657 N.S.; effective 7-15-2016.)

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It is unlawful to manufacture, sell, offer to sell, offer for sale, distribute, or possess for sale any Federal Schedule I Drug, Novel Synthetic Drug, or Novel Psychoactive Drug. (“Manufacture, Distribution, and Sale Prohibited” added 6-14-2016 by Emergency Ordinance O-20660 N.S.; effective 6-14-2016.) (“Manufacture, Distribution, and Sale Prohibited” added 6-15-2016 by O-20657 N.S.; effective 7-15-2016.)

It is unlawful to possess any Federal Schedule I Drug, Novel Synthetic Drug, or Novel Psychoactive Drug. (Possession Prohibited” added 6-14-2016 by Emergency Ordinance O-20660 N.S.; effective 6-14-2016.) (Possession Prohibited” added 6-15-2016 by O-20657 N.S.; effective 7-15-2016.)

The following factors, in addition to the specific circumstances of each situation, may be considered to determine if a violation of this Division has occurred:

(1) Marketing: The product is not suitable for its marketed use (such as a
crystalline or powder product being marketed as “glass cleaner”);

(2) Sales Location: The business providing, displaying for sale, 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” or “potpourri”);

(3) Warning Labels: 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,” or “does not contain chemicals banned by the
Federal Controlled Substances Act, Cal. Health & Safety Code § 11357.5 or
§ 11375.5”);

(4) Price: The product is significantly more expensive than products actually used
for that product’s marketed use (such as half of a gram of a substance
marketed as “glass cleaner” costing $50.00);

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(5) Similarity to Illicit Street Drugs: The product resembles the form or
consistency of an illicit street drug (such as cocaine or methamphetamine);

(6) Brand Names Targeting Youth: The product’s name or packaging uses images
or slang targeted at youth or referencing an illicit street drug (such as Eight
Ballz, Green Buddha, Black Mamba, Fruit Punch, Joker, K-2, Next
Generation, OMG, Puff, Purple Diesel, Scooby Snax Potpourri, Spice,
Strawberry Smacked, or Tropical Punch Smacked);

(7) Effect: Aspects of the packaging or labeling suggesting the user will achieve a
“high,” euphoria, relaxation, mood enhancement, or that the product has other
psychoactive or psychotropic effects on the brain or body;

(8) Distribution: The methods by which the substance is distributed, including
any methods similar to unlawful distribution of illicit street drugs;

(9) Display: The product is not displayed in a business such as lawful products
are displayed but is hidden away or can only be purchased through secretive
means;

(10) Age Restrictions: The product label contains a restriction that it is not for sale
to minors or anyone under the age of 18 when the product’s marketed use
would not contain such restrictions;

(11) Verbal or Written Communication: Verbal or written representations regarding the purpose, methods, use, or effect of the product.

Disclaiming a Federal Schedule I Drug, a Novel Synthetic Drug, or a Novel
Psychoactive Drug as “not safe for human consumption” will not avoid the
application of this Division.
(“Evidentiary Factors” added 6-14-2016 by Emergency Ordinance O-20660 N.S.;
effective 6-14-2016.)
(“Evidentiary Factors” added 6-15-2016 by O-20657 N.S.; effective 7-15-2016.)
(Amended 1-8-2020 by O-21163 N.S.; effective 2-9-2020.)

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The manufacturing, sale, offering to sell, distribution, or possession for sale of a Federal Schedule I Drug, a Novel Synthetic Drug, or a Novel Psychoactive Drug is a public nuisance. (“Public Nuisance” added 6-14-2016 by Emergency Ordinance O-20660 N.S.; effective 6-14-2016.) (“Public Nuisance” added 6-15-2016 by O-20657 N.S.; effective 7-15-2016.)

It is unlawful for a property owner or other responsible person, after receiving written notice by the City of a violation of this Division, to fail to abate the public nuisance within 30 calendar days from the date of the notice. (“Property Owner and Responsible Person Liability” added 6-14-2016 by Emergency Ordinance O-20660 N.S.; effective 6-14-2016.) (“Property Owner and Responsible Person Liability” added 6-15-2016 by O-20657 N.S.; effective 7-15-2016.)

(a) This Division shall not apply to persons who manufacture, sell, offer to sell, distribute, or possess drugs or substances that have been approved by the United States Food and Drug Administration and are dispensed or possessed in accordance with state and federal law, or to persons who are otherwise specifically permitted by federal or state law to possess such drugs or substances based on the laws in effect at the time of the manufacture, sale, distribution, or possession.

(b) This Division does not affect the recommendation or regulation of medical
marijuana pursuant to the Compassionate Use Act of 1996, the Medical
Marijuana Program Act, the Medical Marijuana Regulation and Safety Act, or
Chapter 4, Article 2, Divisions 13 and 15 of this Code, or Chapter 14,
Article 1, Division 6 of this Code.

(c) This Division shall not apply to any drug listed in one of the California
Uniform Controlled Substances Act schedules of controlled substances (Cal.
Health & Safety Code §§ 11053-11058), or that is otherwise regulated by
California or local law in effect at the time.
(“Exclusions” added 6-14-2016 by Emergency Ordinance O-20660 N.S.; effective
6-14-2016.)
(“Exclusions” added 6-15-2016 by O-20657 N.S.; effective 7-15-2016.)

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Article 2: Police — Police Regulations — Offenses Against Government