HomeMy WebLinkAbout16-10 CC Ordinance ORDINANCE NO. 16-10
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF TEMECULA ADDING CHAPTER 8.56,
PSYCHOACTIVE BATH SALTS, PSYCHOACTIVE
HERBAL INCENSE, AND OTHER SYNTHETIC DRUGS TO
THE TEMECULA MUNICIPAL CODE
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES ORDAIN AS
FOLLOWS:
Section 1. Enactment of Chapter 8.56. Chapter 8.56, Psychoactive Bath
Salts, Psychoactive Herbal Incense, and other Synthetic Drugs, is hereby added to Title
11, Peace, Morals and Safety, of the Temecula Municipal Code to read as follows:
"Chapter 8.56 - PSYCHOACTIVE BATH SALTS, PSYCHOACTIVE HERBAL
INCENSE, AND OTHER SYNTHETIC DRUGS
Sections:
8.56.010 Purpose and Intent.
8.56.020 Definitions.
' 8.56.030 Possession, Storage, Provision, Sale and Distribution of
Synthetic Drugs Prohibited.
8.56.040 Exemptions.
8.56.050 Public Nuisance.
8.56.060 Confiscation of Synthetic Drugs.
8.56.070 Modification, Suspension, or Revocation of Permit, License or
other Grant of Authority.
8.56.080 Penalties.
8.56.010 - Purpose and Intent.
(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 and to protect the health safety and welfare of the community.
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(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.
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(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 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," "Diablo 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 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.
8.56.020 — Definitions.
As used in this Chapter, the following words, terms and phrases shall have the
following meanings, unless a different meaning is apparent from the context or is
specified elsewhere in this Chapter:
(a) "Business' shall mean and include professions, trades, vocations,
enterprises, establishments, occupations, and all and every kind of calling, any of
which are conducted, transacted or carried on for the purpose of earning in whole
or in part a profit or livelihood, whether or not a profit or livelihood actually is
earned thereby, whether paid in money, goods, labor, or otherwise. This
' definition shall apply to business establishments located within the City that are
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operated at a fixed physical location and those that are operated on a mobile
' basis by a mobile-operator.
(b) "Consume," "consuming" and "consumption" means to ingest,
inhale, inject, smoke or snort (insufflate).
(c) "Distribute," "distributing" and "distribution" means to furnish, give
away, exchange, transfer, deliver or supply, whether for monetary gain or not.
(d) "Person" includes any natural person, business, firm, company,
corporation, public corporation, club, trust, partnership, association and similar
organization.
(e) "Possess," "possessing" and "possession" means 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 or power be exercised solely or jointly with others.
(f) "Provide," "providing" and "provision" means offering to distribute or
sell a product or substance to any person.
(g) "Psychoactive Bath Salts" means 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:
i. 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 f3-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);
ii. Any derivative of the above listed compounds;
iii. Any synthetic substance and its isomers with a
chemical structure similar to the above listed compounds;
' iv. Any chemical alteration of the above listed
compounds; or
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V. 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.
(3) 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 sections 11053-11058), regulated by one of
the UCSA Synthetic Drug Laws (Health and Safety Code sections 11357.5,
11375.5 and 11401), regulated by the Federal Controlled Substances Act (the
"CSA") (21 U.S.C. section 81 et seq.) or approved by the Food and Drug
Administration ("FDA").
(h) "Psychoactive Herbal Incense" means 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:
i. 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-
y1methanone, HU-210 or 1.1-dimethylheptyl-1 1-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-fluo rope ntyl)-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);
ii. Any derivative of the above listed compounds;
iii. Any synthetic substance and its isomers with a
chemical structure similar to the above listed compounds;
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iv. Any chemical alteration of the above listed
' compounds;
V. Any other substantially similar chemical structure or
compound; or
vi. 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, Potpourri, Buzz, Spice 99, Voodoo, Pulse, Hush, Mystery,
Earthquake, Stinger, Ocean Blue, Serenity, Fake Weed, and Black Mamba.
(3) The term "psychoactive herbal incense" 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 sections 11053-11058), regulated by one of
the UCSA Synthetic Drug Laws (Health and Safety Code sections 11357.5,
11375.5 and 11401), regulated by the Federal Controlled Substances Act (the
"CSX) (21 U.S.C. section 81 et seq.) or approved by the Food and Drug
Administration ("FDA").
(i) "Psychoactive or psychotropic euphoric effects" means affecting the
central nervous system or brain function to change perception, mood,
consciousness, cognition or behavior in ways that are similar to the effects of
cannabis.
(j) "Psychoactive or psychotropic stimulant effects" means affecting
the central nervous system or brain function to change perception, mood,
consciousness, cognition or behavior in ways that are similar to the effects of
cocaine, methylphenidate or amphetamines.
(k) "Sell," "selling" and "sale" mean to furnish, exchange, transfer,
deliver or supply for monetary gain.
(1) "Synthetic Drug" includes "psychoactive bath salts" and
"psychoactive herbal incense," as those terms are defined in this Section.
8.56.030 — Possession, Storage, Provision, Sale and Distribution of
Synthetic Drugs Prohibited.
(a) It is unlawful for any person to possess, store, provide, distribute or
sell any synthetic drug within the City.
(b) 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.
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(c) It is unlawful for any person to store, provide, sell or distribute or to
permit the storage, provision, sale or distribution of a substance that has been
placed on the United States Drug Enforcement Agency watch list or the United
States Food and Drug Administration recall or important alert advisory 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 person 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");
(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 fifty dollars ($50.00));
(5) The product resembles an illicit street drug (such as cocaine
or methamphetamine or marijuana);
(6) The product's name or packaging uses images or slang
referencing an illicit drug (such as "Eight Ballz" or "Green Buddha");
(7) The product's name or ingredient can be found on the United
States Drug Enforcement Agency watch list or the United States Food and Drug
Administration recall or important alert advisory; or
(8) Merely disclaiming a synthetic drug as "not safe for human
consumption" will not avoid the application of this Section.
8.56.040 — Exemptions. This Chapter shall not apply to any of the following:
(a) Drugs or substances lawfully prescribed or to chemical compounds
that have been approved by the Federal Food and Drug Administration or are
specifically permitted by state law, including the compounds that are exempt
under the California Uniform Controlled Substances Act (Health and Safety Code
section 11000 et seq.).
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(b) 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) Any activity already regulated by the state Synthetic Drug Laws and
the Federal Controlled Substances Act.
(d) Any act that is permitted, prohibited or preempted by any state or
federal law or regulation."
8.56.50— Public Nuisance.
(a) It is a public nuisance for any person to provide, distribute, or sell
any prohibited synthetic drug.
(b) It is a public nuisance for any person to allow the provision,
distribution, or sale of any prohibited synthetic drug on property owned,
controlled or managed by such person.
(c) It is a public nuisance for any person to provide, distribute, or sell
any substance claimed or represented to be a prohibited synthetic drug.
(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 prohibited
synthetic drug on property owned, controlled or managed by such person.
(e) 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.
(f) In addition to the penalties provided in Section 8.56.070 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, including without
limitation, the provisions of Chapter 8.12 of this Code. All remedies herein are
cumulative and non-exclusive.
8.56.060 — Confiscation of Synthetic Drugs.
(a) 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.
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(b) 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.
8.56.070 — Modification, Suspension, or Revocation of Permit, License or
other Grant of Authority.
If a person violates any provision of this Chapter, then in addition to any other
enforcement action or remedy authorized by this Code or other applicable law,
such violation may be grounds for modification, suspension, or revocation of any
permit, license, or other grant of authority by the City issued to the person, or
issued to any business, firm, company, corporation, public corporation, club trust
partnership, association, or similar organization owned, controlled, or managed
by such person, including without limitation the permits issued pursuant to
Chapter 5.24 of the Code, Tobacco Retailers, in accordance with the procedures
set forth in this Code or other applicable law.
8.56.080 — Penalties.
(a) Criminal Violation. Any person who violates any provision of this
Chapter shall be guilty of a misdemeanor and is subject to prosecution pursuant
to the provisions of Chapters 1.16 and 1.20 of Title 1 of this code.
' (b) Administrative Citations. Any person who violates any provision of
this Chapter shall be guilty of violating the Temecula Municipal Code and may be
issued an administrative citation and be subject to the applicable punishments
pursuant to Chapter 1.21 of Title 1 of this code.
(c) Non-exclusivity. Nothing in this Chapter shall limit or preclude the
enforcement of any other applicable laws or remedies available for violations of
this Chapter, including but not limited to, the enforcement provisions of Title 1 of
the Temecula Municipal Code and nuisance abatement proceedings.
(d) Daily Offense. Each person committing, causing, or maintaining a
violation of this Chapter or failing to comply with the requirements set forth in this
Chapter 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."
Section 2. Severability. If any provision, clause, sentence or paragraph of this
Ordinance or the application thereof to any person or circumstances shall be held
invalid, such invalidity shall not affect the other provisions of this Ordinance which can
be given effect without the invalid provision or application, and to this end, the
provisions of this Ordinance are hereby declared to be severable.
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Section 3. Certification. The City Clerk shall certify to the passage and
' adoption of this Ordinance and shall cause the same to be published or posted in the
manner required by law.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of
Temecula this 15th day of November, 2016.
Michabl S. Naggar, Mayor
ATTEST:
Randi Johl, Jerk
[SEAL]
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STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss
CITY OF TEMECULA )
I, Randi Johl, City Clerk of the City of Temecula, do hereby certify that the
foregoing Ordinance No. 16-10 was duly introduced and placed upon its first reading at a
meeting of the City Council of the City of Temecula on the 25`h day of October, 2016, and
that thereafter, said Ordinance was duly adopted by the City Council of the City of
Temecula at a meeting thereof held on the 15th day of November, 2016, by the following
vote:
AYES: 5 COUNCIL MEMBERS: Comerchero, Edwards, McCracken,
Rahn, Naggar
NOES: 0 COUNCIL MEMBERS: None
ABSTAIN: 0 COUNCIL MEMBERS: None
ABSENT: 0 COUNCIL MEMBERS: None
Randi Johl, City Clerk
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