HomeMy WebLinkAboutMC-1415 Adopted: July 20, 2015
Effective: August 20, 2015
ORDINANCE NO. MC-1415
1 AN ORDINANCE OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO ADDING CHAPTER 9.97 TO THE SAN BERNARDINO
2 MUNICIPAL CODE REGARDING PSYCHOACTIVE BATH SALTS,PSYCHOACTIVE
3 HERBAL INCENSE AND OTHER SYNTHETIC DRUGS.
4
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
5
6 BERNARDINO DO ORDAIN AS FOLLOWS:
7
8 Section 1. Chapter 9.97 is hereby added to the San Bernardino Municipal Code to read in
9 its entirety as follows:
10 "Chapter 9.97
11 PSYCHOACTIVE BATH SALTS, PSYCHOACTIVE HERBAL
12 INCENSE AND OTHER SYNTHETIC DRUGS
Sections:
13
9.97.010 Purpose and Intent
14
9.97.020 Definitions
15
9.97.030 Provision, Sale and/or Distribution of Synthetic Drugs Prohibited
16
9.97.040 Provision, Sale and/or Distribution of Substances Claimed or Represented to
17
be Synthetic Drugs Prohibited
18
9.97.050 Possession of Synthetic Drugs Prohibited
19
9.97.060 Public Nuisance
20
9.97.070 Summary Abatement
21
9.97.080 Revocation of Business License
22
9.97.090 Penalties
23
9.97.100 Seizure of Evidence
24
9.97.110 Exclusions
25
9.97.120 Severability
26
9.97.010 Purpose and Intent.
27 Recreational use of Psychoactive Bath Salts, Psychoactive Herbal Incense and similar products
28 commonly known as "Synthetic Drugs " has been documented to cause hallucinations,
1
ORDINANCE NO. MC-1415
1 agitation, psychosis, aggression, suicidal and homicidal ideations, cannibalism and death. While
State and Federal laws and regulations prohibit some Synthetic Drugs , the makers of
2 these drugs continually alter the composition of the compounds in their products so as to escape
3 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
4 Drugs that are not regulated by State or Federal Law.
5 9.97.020 Definitions.
6 A. "Consume," "consuming" or"consumption" shall mean to ingest, inhale, inject, smoke
or snort (insufflate).
7 B. "Distribute", "distributing" or"distribution" shall mean to furnish, give away, exchange,
8 transfer, deliver or supply, whether for monetary gain or not.
9 C. "Person" shall include any natural person, business, firm, company, corporation, public
corporation, club, trust, partnership, association and/or similar organization.
10
D. "Possess," "possessing" or"possession" shall mean to have for consumption, distribution
11 or sale in one's actual or constructive custody or control, or under one's authority or power,
12 whether such custody, control, authority and/or power be exercised solely or jointly with others.
13 E. "Provide," "providing" or"provision" shall mean offering to distribute or sell a product
or substance to any person.
14 F. "Psychoactive Bath Salts" shall mean any crystalline or powder product that contains a
15 synthetic chemical compound that, when consumed, elicits psychoactive or psychotropic
stimulant effects. The term"Psychoactive Bath Salts" includes without limitation:
16
1. Products that elicit psychoactive or psychotropic stimulant effects and contain any of the
17 following intoxicating chemical compounds:
18 (a) Cathinone (2-amino-l-phenyl-l-propanone), 4-methylmethcathinone (2-
19 methylamino-l-(4-methylphenyl)propan-l-one), 4-methoxymethcathinone (1-(4-
methoxyphenyl)-2-(methylamino)propan-1 -one), MDPV (methylenedioxypyrovalerone),
20 MDMA (3,4-methylenedioxy-N-methylamphetamine), methylone (3,4-methylenedioxy-N-
methylcathinone), methcathinone (2-(methylamino)-1-phenyl-propan-l-one), flephedrone (4-
21 fluoromethcathinone), 3-FMC (3-fluoromethcathinone), ethcathinone (2-ethylamino-l-phenyl-
22 propan-1-one), butylone (-keto-N-methylbenzodioxolylbutanamine), a-PPP (-
pyrrolidinopropiophenone), MPPP (4'-methyl--pyrrolidinopropiophenone), MDPPP (3',4'-
2 3 methylenedioxy--pyrrolidinopropiophenone), -PVP (1-phenyl-2-(1-pyrrolidinyl)-1-pentanone)
24 or naphyrone (1-naphthalen-2-yl-2-pyrrolidin-l-ylpentan-1-one);
25 (b) Any derivative of the above listed intoxicating chemical compounds;
(c) Any synthetic substance and its isomers with a chemical structure similar to the
2 6 above listed compounds;
27 (d) Any chemical alteration of the above listed intoxicating chemical compounds; or
28 (e) Any other substantially similar chemical structure or compound; and
2
ORDINANCE NO. MC-1415
1 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,
2 Charlie, Cloud Nine, Euphoria, Hurricane, Ivory Snow, Ivory Wave, Lunar Wave, Ocean,
3 Ocean Burst, Pixie Dust, Posh, Pure Ivory, Purple Wave, Red Dove, Scarface, Snow Leopard,
Stardust, Vanilla Sky, White Dove, White Night and White Lightning.
4
The term "Psychoactive Bath Salts" shall not include any product, substance, material,
5 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
6 of the UCSA's schedules of controlled substances (Health and Safety Code §§ 11053-11058),
7 regulated by one of the UCSA's Synthetic Drug Laws (Health and Safety Code §§ 113 57.5,
11375.5 and 11401), regulated by the Federal Controlled Substances Act (the "CSA") (21
8 U.S.C. §§ 81 et seq.) or approved by the Food and Drug Administration("FDA").
9 H. "Psychoactive Herbal Incense" shall mean any organic product consisting of plant
10 material that contains a synthetic stimulant compound that, when consumed, elicits
psychoactive or psychotropic euphoric effects. The term "Psychoactive Herbal Incense"
11 includes without limitation:
12 1. Products that elicit psychoactive or psychotropic euphoric effects and contain any of the
following intoxicating chemical compounds:
13
(a) Cannabicyclohexanol (2-[(1R,3S)-3-hydroxycyclohexyl]- 5-(2-methylnonan-2-
14 yl)phenol), JWH-018 (naphthalen-l-yl-(1-pentylindol-3-yl)methanone), JWH-073 (naphthalen-
15 1-yl-(1-butylindol-3-yl)methanone), JWH-200 ((I-(2-morpholin-4-ylethyl)indol-3-yl)-
naphthalen-l-ylmethanone), HU-210 ((6aR,l OaR)- 9-(Hydroxymethyl)- 6,6-dimethyl- 3-(2-
16 methyloctan-2-yl)-6a,7,10,10a-tetrahydrobenzo [c]chromen- I-ol), CP 47,497 (2-[(1R,3S)-3-
hydroxycyclohexyl]- 5-(2-methyloctan-2-yl)phenol) CP 47,497 (2-[(IR,3S)-3-
17 hydroxycyclohexyl]-5-(2-methyloctan-2-yl)phenol) or AM-2201 (1-[(5-fluoropentyl)-1H-indol-
18 3-yl]-(naphthalen-l-yl)methanone);
19 (b) Any derivative of the above listed intoxicating chemical compounds;
20 (c) Any synthetic substance and its isomers with a chemical structure similar to the
above listed intoxicating chemical compounds;
21
(d) Any chemical alteration of the above listed intoxicating chemical compounds; or
22
(e) Any other substantially similar chemical structure or compound.
23
2. Products that elicit psychoactive or psychotropic euphoric effects and are marketed
24 under any of the following trade names: K2, K3, Spice, Genie, Smoke, Potpourri, Buzz, Spice
99, Voodoo, Pulse, Hush, Mystery, Earthquake, Black Mamba, Stinger, Ocean Blue, Stinger,
25 Serenity, Fake Weed and Black Mamba.
26 The term "Psychoactive Herbal Incense" shall not include any product, substance, material,
27 compound, mixture, or preparation that is specifically excepted by the UCSA (Health and
Safety Code §§ 11000 et seq.), listed in one of the UCSA's schedules of controlled substances
28 (Health and Safety Code §§ 11053-11058), regulated by one of the USCA's Synthetic Drug
3
ORDINANCE NO. MC-1415
1 Laws (Health and Safety Code §§ 11357.5,11375.5 and 1 1401), regulated by the CSA (21
U.S.C. §§ 81 et seq.) or approved by the FDA.
2
J. "Psychoactive or psychotropic stimulant effects" shall mean affecting the central nervous
3 system or brain function to change perception, mood, consciousness, cognition and/or behavior
4 in ways that are similar to the effects of cocaine, methylphenidate or amphetamines.
5 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
6 in ways that are similar to the effects of cannabis.
7 L. "Sell," "selling" or"sale" shall mean to furnish, exchange, transfer, deliver or supply for
s
monetary gain.
M. "Synthetic Drug" shall include Psychoactive Bath Salts and Psychoactive Herbal Incense,
9 as those terms are defined hereinabove.
10 9.97.030 Provision, Sale and/or Distribution of Synthetic Drugs Prohibited.
11 A. It is unlawful for any person to provide, distribute or sell any Synthetic Drug within the
City of San Bernardino.
12
B. Merely disclaiming a Synthetic Drug as "not safe for human consumption"will not avoid
13 the application of this Section.
14 9.97.040 Provision, Sale and/or Distribution of Substances Claimed or Represented to be
15 Synthetic Drugs Prohibited.
A. It is unlawful for any person to claim or represent that a product that person is providing,
16 distributing or selling is a Synthetic Drug within the City of San Bernardino.
17 B. To determine if a person is claiming or representing that a product is a Synthetic Drug,
the enforcing officer may consider any of the following evidentiary factors:
18
1. The product is not suitable for its marketed use (such as a crystalline or powder product
19 being marketed as "glass cleaner");
20 2. The business providing, distributing or selling the product does not typically provide,
21 distribute or sell products that are used for that product's marketed use (such as a liquor store
selling "plant food");
22
3. The product contains a warning label that is not typically present on products that are
23 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");
24
4. The product is significantly more expensive than products that are used for that
25 product's marketed use (such as a half of a gram of a substance marketed as "glass cleaner"
26 costing $50.00);
27 5. The product resembles an illicit street drug (such as cocaine, methamphetamine or
marijuana); or
28
4
ORDINANCE NO. MC-1415
1 6. The product's name or packaging uses images or slang referencing an illicit street drug
(such as "Eight Ballz" or"Green Buddha").
2
C. Merely disclaiming a substance claimed or represented to be a Synthetic Drug as "not
3 safe for human consumption"will not avoid the application of this Section.
4 9.97.050 Possession of Synthetic Drugs Prohibited.
5 It is unlawful for any person to possess any Synthetic Drug within the City of San Bernardino.
6 9.97.060 Public Nuisance.
A. It is a public nuisance for any person to provide, distribute or sell any Synthetic Drug
7 within the City of San Bernardino.
8 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 of
9 San Bernardino.
10 C. It is a public nuisance for any person to provide, distribute or sell any substance claimed
11 or represented to be a Synthetic Drug within the City of San Bernardino.
12 D. It is a public nuisance for any person to allow the provision, distribution or sale of any
substance claimed or represented to be a Synthetic Drug on property owned, controlled or
13 managed by such person within the City of San Bernardino.
14 E. To determine if a person is claiming or representing that a substance or product is a
15 Synthetic Drug, the enforcing officer may consider any of the evidentiary factors set forth in
Section 9.97.040(B) of this Chapter.
16 9.97.070 Summary Abatement.
17 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
18 this Chapter presents a grave and imminent danger not only to the person consuming the
19 Synthetic Drug, but also to the public at large. If the Enforcement Officer, based on the facts
then known, determines that a violation of this Chapter presents an imminent danger or hazard
20 or is imminently injurious to the public health or safety, then that violation is punishable by the
summary abatement.
21
9.97.080 Revocation of Business License.
22 No person holding a validly issued City business license and owning or operating a business in
23 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 Section by the holder of a
24 validly issued City business license, shall constitute grounds for modification, suspension
and/or revocation of said license.
25
9.97.090 Penalties.
26 A. Misdemeanor Violation. Failure to comply with any of the requirements of this Chapter is
27 a misdemeanor punishable by imprisonment in the 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
28
5
ORDINANCE NO. MC-1415
1 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.
2
B. Infraction Violation. Where the City Attorney determines that, in the interest of justice, a
3 violation of this Chapter is an infraction, such infraction is punishable by a fine not exceeding
4 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
5 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
6 charged with an infraction shall not be entitled to a trial by jury and shall not be entitled to have
7 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
8 recognizance or a deposit of bail. However, any person who has previously been convicted two
9 (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
10 violation.
11 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
12 separate offense for each and every day during any portion of which any violation of any
13 provision of this Chapter is committed, continued, maintained or permitted by such person and
shall be punishable accordingly.
14
D. Civil Remedies Available; Remedies Cumulative. In addition to the penalties provided in
15 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
16 means of a restraining order, preliminary or permanent injunction or in any manner provided by
17 law for the abatement of such nuisance. All remedies herein are cumulative and non-exclusive.
18 E. Administrative Citation/Administrative Civil Penalty. In lieu of issuing a criminal
citation, the City may issue an administrative citation pursuant to Chapter 9.92 of this
19 Municipal Code or an Administrative Civil Penalty pursuant to Chapter 9.93 of this Municipal
Code, to any person responsible for committing, causing or maintaining a violation of this
2 o Chapter. Nothing in this Section shall preclude the City from also issuing a citation upon the
21 occurrence of the same offense on a separate day.
22 F. Additional Penalties: Costs of Abatement. Nothing in this Chapter shall preclude the City
from pursuing the remedies made applicable hereto elsewhere in this Municipal Code or under
23 State law, including but not limited to, as applicable, denial or revocation of certificates of
24 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
25 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.
26
G. Public Nuisance Remedies. The prevailing party in any proceeding associated with the
27 abatement of a public nuisance as provided herein, shall be entitled to recovery of attorneys'
28 fees incurred in any such proceeding, where the City has elected, at the initiation of that
6
ORDINANCE NO. MC-1415
1 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
2 party exceed the amount of reasonable attorneys' fees incurred by the City in the action or
3 proceeding.
4 9.97.100 Seizure of Evidence.
Any product(s) or substance(s) possessed, provided, distributed or sold in violation of any
5 provision of this Chapter shall be seized by the enforcing officers and removed and stored in
accordance with law.
6
9.97.110 Exclusions.
7 A. This Chapter shall not apply to drugs or substances lawfully prescribed or to intoxicating
8 chemical compounds which have been approved by the federal Food and Drug Administration
or which are specifically permitted by California law, including without limitation, intoxicating
9 chemical compounds that are specifically excepted by the California Uniform Controlled
10 Substances Act (Health and Safety Code § 11000 et seq.).
11 B. This Chapter shall not apply to drugs or substances which are prohibited by State or
Federal law, including without limitation, California Health and Safety Code Sections 11357.5,
12 11375.5, 11401 and the Federal Controlled Substances Act
13 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.
14
9.97.120 Severability.
15 If any subsection, sentence, clause or phrase of this Chapter is for any reason held to be invalid
16 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
17 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
18 without regard to any such decision or preemptive legislation."
19
20
21
22
23
24
25
26
27
28 HI
7
ORDINANCE NO. MC-1415
1 AN ORDINANCE OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO ADDING CHAPTER 9.97 TO THE SAN BERNARDINO
2 MUNICIPAL CODE REGARDING PSYCHOACTIVE BATH SALTS, PSYCHOACTIVE
3 HERBAL INCENSE AND OTHER SYNTHETIC DRUGS.
4 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the
5 20th day of July, 2015, by the following vote, to wit:
6
COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
7
8 MARQUEZ X
9 BARRIOS X
11 VALDIVIA X
11
SHORETT X
12
NICKEL X
13
14 JOHNSON X
15 MULVIHILL X
16
Geor e Hanna, C, City Clerk
18 7
19 The foregoing Ordinance is hereby approved thisp—day of July, 2015.
20
21 R. Carey Davi , Mayor
22 City of San ernardino
Approved as to form:
23 Gary D. Saenz, City Attorney
24
25
By:
26
27
28
8