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282 J ORDINANCE NO. 282 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GRAND TERRACE AMENDING TITLE 9 OF THE GRAND TERRACE MUNICIPAL CODE BY ADDING CHAPTER 9.26 REGARDING PSYCHOACTIVE BATH SALTS,PSYCHOACTIVE HERBAL INCENSE AND OTHER SYNTHETIC DRUGS, PROHIBITING THE DISTRIBUTION AND SALE OF CERTAIN INTOXICATING CHEMICALS KNOWN AS SYNTHETIC DRUGS WHEREAS, Article XI Section 7 of the California Constitution provides that a city may make and enforce within its limits all police, sanitary and other ordinances and regulations not in conflict with general laws; and WHEREAS, information has come to the attention of City staff regarding effective prohibition,regulation, and enforcement of ordinances regarding synthetic drugs, generally, and as implemented by other cities in the region; and WHEREAS,the City Council finds that the public health,safety,and welfare of the City and its residents will be improved by addition of an additional chapter to the City's Municipal Code with respect to synthetic drugs by providing clear definitions of the drugs sought to be prohibited,as well r- as standards by which conduct can be measured in order to make a determination of prohibited conduct, among other provisions; and WHEREAS,ALL legal prerequisites prior to the adoption of this ordinance have occurred. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GRAND TERRACE DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: The City Council finds that all the facts, findings, and conclusions set forth above in this Ordinance are true and correct. SECTION 2: The City Council further finds as follows: (a) 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, despite the State of California's attempt to ban such drugs under Health & Safety Code sections 11357.5 (banning synthetic cannabinoid compounds), 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 virtually every community in California has recognized the danger of Synthetic Drugs which have been documented to cause hallucinations,agitation,psychosis, ( aggression, suicidal and homicidal ideations, cannibalism and death. ORDINANCE NO. 282 PAGE 1 OF 10 MAY 26, 2015 16 (b) While State Synthetic Drugs Laws and the CSA prohibit certain compounds that are used to create synthetic drugs, standing alone 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 purview of State Synthetic Drug Laws, the CSA and other laws and regulations attempting to prohibit the sale of Synthetic Drugs. In fact, products which plainly are being marketed for use of Synthetic Drugs are now being packaged with advertisements stating that the product does not contain the compounds specifically banned by 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 (c) 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"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. (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 Synthetic Drug's marketed use.For example,a Synthetic Drug marketed as"glass cleaner"might be priced at $50.00 for an eighth of an ounce, while bona fide glass cleaner is priced at approximately$5.00 for 26 ounces. (5) Similarity to Illicit Street Drugs: Synthetic Drugs often resemble illicit street drugs and/or use brand names and packaging that are designed to make the product appear similar to illicit street 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 ORDINANCE NO. 282 PAGE 2 OF 10 MAY 26, 2015 l Mamba," "K-2," "Puff," "Sugar Sticks," "Green Buddha," "Diablo Botanical Incense," "Scooby Snax Potpourri,""Grape Ape Herbal Incense,""Aurora Incense,""Three Monkey Incense,""Mr.and Mrs. Marley," "Cloud 9 Incense" and a group of Synthetic Drugs marketed as from "The Spice Guy." (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 and through the prohibition against the issuance of a business license(pursuant to Section 15-3 of the Fontana Municipal Code). Because the chemical composition of Synthetic Drugs is constantly evolving,it is necessary to look at the circumstances surrounding the marketing(including price),distribution or sale of any given product to determine if the product is being provided, distributed or sold as a recreational drug. This ordinance shall not apply to any activity already regulated by Health and Safety Code Sections 11357.5, 11375.5, 11401, the CSA or pre-empted by any State or Federal law or regulation. SECTION 3: The City council hereby amends Title 9(Public Pease,Morals and Welfare)of the Grand Terrace Municipal Code with the addition of the following Chapter 9.26(Synthetic Drugs —Sale and Use Prohibited) as follows: SYNTHETIC DRUGS—SALE AND USE PROHIBITED 9.26.010— Purpose and intent. 9.26.020— Definitions. 9.26.030— Provision, display for sale, sale or distribution or synthetic drugs prohibited. 9.26.040— Provision,display for sale, sale or distribution of substances claimed or represented to be synthetic drugs prohibited. 9.26.050— Possession of synthetic drugs prohibited. 9.26.060— Public Nuisance. 9.26.070— Summary Abatement. 9.26.080— Revocation of business license. 9.26.090— Penalties. 9.26.100— Seizure of evidence. 9.26.110— Exclusions. 9.26.010—Purpose and Intent. 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. ORDINANCE NO. 282 PAGE 3 OF 10 MAY 26, 2015 9.26.020—Definitions. The following words,terms and phrases,when used in this'chapter,shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Business shall have the same meaning as the term is defined in section 5.04.020 of this Municipal Code. Consume, consuming or consumption shall mean to ingest,inhale, inject, smoke or snort(insufflate). Distribute, distributing, or 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 or similar organization. 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 or power be exercised solely or jointly with others. , Provide,providing or 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 intoxicating chemical compounds: (A) Cathinone(2-amino-1-phenyl-l-propanone),4-methylmethcathinone (2-methylamino-1-(4-methylphenyl)propan-1-one),. 4- methoxymethcathinone (1-(4-methoxyphyenyl)-2- (methylamino)propan-l-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-l-phenyl-propan-l- one), butylone (13-keto-N- methylbenzodioxolylbutanamine), a-PPP (a- pyrrolidinopropiophenon), I MPPP (4'-methyl-a- pyrrolidinopropiophenone), MDPPP (3',4'-methylenedioxy-a- pyrrolidinopriopiophenone), a-PVP (1-phenyl-2-(1-pyrrolidinyl)-1- pentanone)or naphyrone(1-naphthalen-2-y1-2-pyrrolidin-l-ylpentan- 1-one); � ORDINANCE NO. 282 PAGE 4 OF 10 MAY 26, 2015 (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 of the UCSA's schedules of controlled substances (Health and Safety Code §§ 11053-11058), regulated by one 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"). — 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 chemical compounds: (A) Cannabicyclohexanol (2-[(1R,3S)-3-hydroxycyclohexyl]-5-(2- methylnonan-2-yl)phenol), JWH-018 (naphthalene-l-yl-(1- pentylindol-3-yl)methanone), JWH-073 (napththalen-l-yl-(1- butylindol-3-yl)methanone), JWH-200 ((1-(2-morpholin-4- ylethyl)indol-2-yl)-naphthalen-1-ylmethanone), HU-210 ((6aR,1 OaR)-9-(Hydroxymethyl)-6,6-dimethyl-3-(2-methyloctan-2- yl)-6a,7,10,10a- tetrahydrobenzo [c]chromen-l-ol), CP 47, 497 (2- [(lR,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]- (napthalen-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; ORDINANCE NO. 282 PAGE 5 OF 10 015 (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 names: K2, K3, Spice, Genie, Smoke, Potpourri,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 of the UCSA's schedules of controlled substances (Health and Safety Code §§ 11053-11058) regulated by one 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. Psychoactive or psychotropic stimulant effects shall mean 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. Psychoactive or psychotropic euphoric effects shall mean 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. Sell, selling or 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. 9.26.030 — Provision, display for sale, sale or distribution of synthetic drugs prohibited. A. It is unlawful for any,person to provide,display for sale,distribute or sell any synthetic drug within the City of Grand Terrace. B. Merely disclaiming a synthetic drug as"not safe for human consumption"will not avoid the application of this chapter. 9.26.040—Provision, display for sale, sale or distribution of substances claimed or represented to be synthetic drugs prohibited. A. It is unlawful for any person to claim or represent that a product that person is providing, displaying for sale, distributing or selling is a synthetic drug within the City of Grand Terrace. ORDIIXANCE NO. 282 PAGE 6 OF 10 MAY 26, 2015 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: (1) The product is not suitable for its marketed use(such as a crystalline or powder product being marketed as "glass cleaner"); (2) 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"); (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 section 11357.5"); (4) The product is significantly more expensive than products that are used for that product's marketed use (such as half of a gram of a substance marketed as "glass cleaner" costing$50.00); (5) The product resembles an illicit street drug (such as cocaine, methamphetamine or marijuana); or (6) The product's name or packaging uses images or slang referencing an illicit street drug(such as "Eight Ballz" or "Green Buddha"). C. Merely disclaiming a substance claimed or represented to be a synthetic drug as "not safe for human consumption" will not avoid the application of this section. 9.26.050—Possession of synthetic drugs prohibited. It is unlawful for any person to possess any synthetic drug within the City of Grand Terrace. 9.26.060—Public Nuisance. A. It is a public nuisance for any person to provide,display for sale,distribute or sell any synthetic drug within the City of Grand Terrace. B. It is a public nuisance for any person to allow the provision,display for sale, distribution or sale of any synthetic drug on property owned, controlled or managed by such person within the City of Grand Terrace. C. It is a public nuisance for any person to provide,display for sale;distribute or sell any substance claimed or represented to be a synthetic drug within the City of Grand Terrace. D. It is a public nuisance for any person to allow the provision,display for sale, distribution or sale of any substance claimed or represented to be a synthetic drug on property owned, controlled or managed by such person within the City of Grand Terrace. E. To determine if a person is claiming or representing that a substance or product is a synthetic drug,the enforcing officer may consider any of the evidentiary factors set forth in 9.27.040 of this chapter. r-� ORDINANCE NO. 282 PAGE 7 OF 10 MAY 26, 2015 c.. 9.26.070—Summary abatement. 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 compliance 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 this Code, consistent with state law. 9.26.080—Revocation of business license. No person holding a 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 section by the holder of a city business license, shall constitute grounds for modification, suspension, revocation, or any combination thereof, of said license. 9.26.090—Penalties. Established by resolution of the City of Grand Terrace iCity Council. 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 $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$100.00 for a first violation,a fine not exceeding$200.00 for a second violation of the same provision within one year, and a fine not exceeding $500.00 for each additional infraction violation of the same provision within one year.An infraction is not punishable by imprisonment.A person charged with an infraction shali'i 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 or more times during any 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. The fine amounts set forth above may bepodified,from time to time,by city council resolution. In no event shall such fine amounts exceed the amounts authorized by state law. ORDINANCE NO. 282 PAGE 8 OF 10 MAY 26, 2015 9.26.100— Seizure of evidence. Anyproduct(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, stored and disposed of in accordance with law. 9.26.110—Exclusions. 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 which are specifically permitted by California 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 that are prohibited by state or federal law,including without limitation, California Health and Safety Code§§ 11357.5, 11375.5, 11401 and the Federal Controlled Substances Act. C. This chapter shall not be deemed to prescribe any act .that is positively permitted,prohibited or preempted by any state or federal law or regulation. SECTION 4: Any provision of the Grand Terrace Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. SECTION 5: Severability. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The City Council hereby declares that it would have adopted this Ordinance irrespective of the invalidity of any particular portion thereof. SECTION 6: Effective Date. This Ordinance shall become effective thirty(30)days from its adoption. SECTION 7: Publication. The City Clerk shall certify to the adoption of this Ordinance and cause it, or a summary of it, to be published in a newspaper of general circulation printed and published within the City of Grand Terrace, pursuant to all legal requirements. PASSED, APPROVED, and INTRODUCED this 26 h day of May, 2015. ATTEST: E arcy cNaboe Pat Jacque - a s May City Clerk ORDINANCE NO. 282 PAGE 9 OF 10 MAY 26, 2015 Approved as to form: 1 Richard L. Adams, II City Attorney I, Pat Jacquez-Nares, City Clerk of the City of Grand Terrace, do hereby certify that the foregoing Ordinance was introduced at a regular meeting held on the 12th day of May 2015, and adopted at a regular meeting of the City Council of the City of Grand Terrace held on the 12th day of May, 2015, by the following vote: AYES: Council Members Mitchell,Hussey,Wilson,Mayor Pro Tem Robles,Mayor McNaboe NOES: None ABSENT: None ABSTAIN: None Pat Jac q - are City Clerk ORDINANCE NO. 282 PAGE 10 OF 10 MAY 26, 2015