Twentynine Palms Municipal Code Ch. 11.36 Synthetic Drug Regulations

Footnotes:

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Editor's note— Ord. No. 250, § 4, adopted February 26, 2013, set out provisions for use herein as ch. 11.32. As a ch. 11.32 already existed, and at the editor's discretion, those provisions were renumbered and included as ch. 11.36, §§ 11.36.010—11.36.110.

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 purview of these laws and regulations. The purpose and intent of this Chapter is to provide the City with reasonable measures to address the dangers to the community posed by synthetic drugs that are not regulated by State or Federal law.

(Ord. No. 250, § 4, 2-26-2013)

(a) "Business" shall have the same meaning as the definition provided in Section 5.01.010(a).

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

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

(d) "Market" or "marketing" shall mean to promote, advertise or attempt to sell a product.

(e) "Person" shall mean an individual, a proprietorship, a partnership, a corporation, an association, a limited liability company or any other legal entity.

(f) "Possess," "possessing" or "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.

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

(h) "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 intoxicating chemical compounds:

(A) Cathinone (2-amino-1-phenyl-1-propanone), 4-methylmethcathinone (2-methylamino-1-(4-methylphenyl)propan-1-one), 4-methoxymethcathinone (1-(4-methoxyphenyl)-2-(methylamino)propan-1-one), MDPV (methylenedioxypyrovalerone), MDMA (3,4-methylenedioxy-N-methylamphetamine), methylone (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 (β-keto-N-methylbenzodioxolylbutanamine), α-PPP (α-pyrrolidinopropiophenone), MPPP (4'-methyl-α-pyrrolidinopropiophenone), MDPPP (3',4'-methylenedioxy-α-pyrrolidinopropiophenone), α-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 intoxicating chemical 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 intoxicating chemical 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.

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 (1) of the UCSA's schedules of controlled substances (Health and Safety Code §§ 11053-11058), regulated by one (1) 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 §§ 81 et seq.) or approved by the Food and Drug Administration ("FDA").

(i) "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 intoxicating chemical compounds:

(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-1-yl-(1-butylindol-3-yl)methanone), JWH-200 ((1-(2-morpholin-4-ylethyl)indol-3-yl)-naphthalen-1-ylmethanone), HU-210 ((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) CP 47,497 (2-[(1R,3S)-3-hydroxycyclohexyl]- 5-(2-methyloctan-2-yl)phenol) or AM-2201 (1-[(5-fluoropentyl)-1H-indol-3-yl]-(naphthalen-1-yl)methanone);

(B) Any derivative of the above listed intoxicating chemical compounds;

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

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

(E) Any other substantially similar chemical structure or compound; 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, Pot-Pourri, Buzz, Spice 99, Voodoo, Pulse, Hush, Mystery, Earthquake, Black Mamba, Stinger, Ocean Blue, Stinger, Serenity, Fake Weed and Black Mamba.

The term "psychoactive herbal incense" shall not include any product, substance, material, compound, mixture, or preparation that is specifically excepted by the UCSA (Health and Safety Code §§ 11000 et seq.), listed in one (1) of the UCSA's schedules of controlled substances (Health and Safety Code §§ 11053-11058), regulated by one (1) of the USCA's synthetic drug laws (Health and Safety Code §§ 11357.5, 11375.5 and 11401), regulated by the CSA (21 USC §§ 81 et seq.) or approved by the FDA.

(j) "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.

(k) "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.

(l) "Sell," "selling" or "sale" shall mean to furnish, exchange, transfer, deliver or supply for monetary gain.

(m) "State and Federal synthetic drug laws" shall include California Health and Safety Code Sections 11357.5, 11375.5 and 11401, the "Combating Dangerous Synthetic Stimulants Act of 2011" (S.409), the "Dangerous Synthetic Drug Control Act of 2011" (S.605), and the "Combating Designer Drugs Act of 2011" (S.839) (amending the "Controlled Substances Act," 21 U.S.C. § 812 et seq.).

(n) "Synthetic drug" shall include:

(1) Psychoactive bath salts and psychoactive herbal incense as those terms are defined hereinabove; and

(2) Any other product possessed, provided, distributed, sold and/or marketed with the intent that it be used as a recreational drug, such that its consumption or ingestion is intended to produce effects substantially similar to the effects created by the above-listed chemical compounds and/or is intended to produce effects substantially similar to the effects created by compounds banned by the State and Federal synthetic drug laws. Any reasonable evidence may be utilized to demonstrate a product's intended use causes it to fit the definition of a synthetic drug including, without limitation, any of the following evidentiary factors:

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

(B) The individual or 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");

(C) 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");

(D) 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 fifty dollars ($50.00));

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

(F) The product's name or packaging uses images or slang referencing an illicit street drug (such as "Eight Ballz" or "Green Buddha").

(Ord. No. 250, § 4, 2-26-2013)

(a) It is unlawful for any person to provide, distribute or sell any synthetic drug within the City.

(b) To determine if a person is providing, distributing or selling a synthetic drug, the enforcing officer may consider any of the evidentiary factors set forth in Section 11.36.020(n)(2).

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

(Ord. No. 250, § 4, 2-26-2013)

(a) It is unlawful for any person to possess any synthetic drug within the City.

(b) To determine if a person has a synthetic drug in his, her or its possession, the enforcing officer may consider any of the evidentiary factors set forth in Section 11.36.020(n)(2).

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

(Ord. No. 250, § 4, 2-26-2013)

(a) It is a public nuisance for any person to provide, distribute or sell any synthetic drug within the City.

(b) It is a public nuisance for any person to allow the provision, distribution or sale of any synthetic drug on property owned, controlled or managed by such person within the City.

(c) To determine if a person is providing, distributing or selling a synthetic drug, the enforcing officer may consider any of the evidentiary factors set forth in Section 11.36.020(n)(2).

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

(Ord. No. 250, § 4, 2-26-2013)

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. If the code enforcement officer, based on the facts then known, determines that a violation of this Chapter presents an imminent danger or hazard or is imminently injurious to the public health or safety, then that violation is punishable by the summary abatement procedures set forth in Section 1.04.020(d).

(Ord. No. 250, § 4, 2-26-2013)

(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 (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) Infraction Violation. Where the City Attorney determines that, in the interest of justice, a violation of this Chapter is an infraction, such infraction is punishable by a fine not exceeding one hundred dollars ($100.00) for a first violation, a fine not exceeding two hundred dollars ($200.00) for a second violation of the same provision within one (1) year, and a fine not exceeding five hundred dollars ($500.00) for each additional infraction violation of the same provision within one (1) year. An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury and shall not be entitled to have the public defender or other counsel appointed at public expense to represent him/her, unless he/she is arrested and not released on his/her written promise to appear, his/her own recognizance or a deposit of bail. However, any person who has previously been convicted two (2) or more times during any twelve (12) month period for any violation of this Chapter for a crime made punishable as an infraction shall be charged with a misdemeanor upon the third violation.

(c) 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.

(d) Civil Remedies Available; Remedies Cumulative. In addition to the penalties provided in this Section, any condition caused or permitted to exist in violation of any of the provisions of this Chapter shall constitute a public nuisance and may be abated by the City by civil process by means of a restraining order, 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.

(e) Additional Penalties; Costs of Abatement. Nothing in this Chapter shall preclude the City from pursuing the remedies made applicable hereto elsewhere in this Code or under State law, including but not limited to, as applicable, denial or revocation of certificates of occupancy and injunctive relief. In any administrative 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 guilty party, upon submission of proof of such cost by the City.

(f) Public Nuisance Remedies. The prevailing party in any proceeding associated with the abatement of a public nuisance as provided herein, shall be entitled to recovery of attorneys' fees incurred in any such proceeding, where the City has elected, at the initiation of that individual action or proceeding to seek recovery of its own attorneys' fees. In no action, administrative proceeding or special proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the City in the action or proceeding.

(Ord. No. 250, § 4, 2-26-2013)

Any product(s) or substance(s) possessed, provided, distributed or sold in violation of any provision of this Chapter shall be seized by the enforcing officers and removed and stored in accordance with law.

(Ord. No. 250, § 4, 2-26-2013)

(a) This Chapter shall not apply to drugs or substances lawfully prescribed or to intoxicating chemical compounds which have been approved by the Federal Food and Drug Administration or which are specifically permitted by State law, including without limitation, intoxicating chemical compounds that are specifically excepted by the California Uniform Controlled Substances Act (Health and Safety Code § 11000 et seq.).

(b) This Chapter shall not apply to drugs or substances which are prohibited by State and/or Federal law, including without limitation, California Health and Safety Code Sections 11357.5, 11375.5, 11401 and the Federal Controlled Substances Act (21 U.S.C. § 812 et seq.).

(c) This Chapter shall not be deemed to prescribe any act which is positively permitted, prohibited or preempted by any State or Federal law or regulation.

(Ord. No. 250, § 4, 2-26-2013)

If any subsection, sentence, clause or phrase of this Chapter is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction or preempted by State or Federal legislation, such decision or legislation shall not affect the validity of the remaining portions of this Chapter. The City Council declares that it would have passed this Chapter and each and every subsection, sentence, clause or phrase not declared invalid or unconstitutional without regard to any such decision or preemptive legislation.

(Ord. No. 250, § 4, 2-26-2013)