Chapter 9.09
PSYCHOACTIVE HERBAL INCENSE, PSYCHOACTIVE BATH SALTS AND OTHER SYNTHETIC DRUGS

Sections:

9.09.010    Purpose and intent.

9.09.020    Definitions.

9.09.030    Provision, display for sale, sale or distribution of synthetic drugs prohibited.

9.09.040    Provision, display for sale, sale or distribution of substances claimed or represented to be synthetic drugs prohibited.

9.09.050    Possession of synthetic drugs prohibited.

9.09.060    Public nuisance.

9.09.070    Confiscation of synthetic drugs.

9.09.080    Revocation of business license.

9.09.090    Penalties.

9.09.100    Seizure of evidence.

9.09.110    Exclusions.

9.09.010 Purpose and intent.

Recreational use of psychoactive herbal incense, psychoactive bath salts and similar products 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.

It is the purpose and intent of this chapter to prohibit the sale or possession of psychoactive herbal incense and psychoactive bath salts, as those terms are defined herein, in the city to protect and preserve the public peace, safety, health, and welfare of those within the city and to provide the city with reasonable measures to address the dangers to the community posed by synthetic drugs, including those not regulated by state or federal law. Nothing in this chapter shall be construed to cease or limit or encroach in any way upon any field of law occupied by federal law or by the laws of the state of California. (Ord. 1622 § 2 (part), 2015)

9.09.020 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 5.01.103.

“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. Salvia divinorum or Salvinorum A; all parts of the plant presently classified botanically as Salvia divinorum, whether growing or not, the seeds thereof, any extract from any part of such plant, and every compound, manufacture, salts derivative, mixture or preparation of such plant, its seeds or extracts;

b. Cathinone (2-amino-1-phenyl-1-propanone), 4- methylmethcathinone (2-methylamino-1-(4-methylphenyl)propan-1-one), 4-methoxymethcathinone (1-(4-methoxyphenyl)-2-(methylamine)propan-1-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-1-phenyl-propan-1-one), butylone (β-keto-N-methylbenzodioxolylbutamine), a-PPP (a- pyrrolidinopropiophenon), 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-yl-2- pyrrolidin-1-ylpentan-1-one), 6-APDB (6(2aminopropyl)2,3 dihydrobenzo-furan), and analogs of MDA (3,4-methylenedioxymethamphetamine);

c. Any derivative of the above listed intoxicating chemical compounds;

d. Any synthetic substance and its isomers with a chemical structure similar to the above listed compounds;

e. Any chemical alteration of the above listed intoxicating chemical compounds; or

f. 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 Section 11000 et seq.), listed in one of the UCSA’s schedules of controlled substances (Health and Safety Code Sections 11053 through 11058), regulated by one of the UCSA’s Synthetic Drug Laws (Health and Safety Code Sections 11357.5, 11375.5 and 11401), regulated by the Federal Controlled Substances Act (the “CSA”) (21 USC Section 801 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-1-yl-(1-pentylindol-3-yl)methanone), JWH-073 (napththalen-1-yl-(1-butylindol-3-yl)methanone), JWH-200 ((1-(2-morpholin-4-ylethyl)indol-2-yl)-naphthalen-1-ylmethanone), HU-210 or 1.1-dimethylheptyl-11-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 (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), 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);

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;

e. Any other substantially similar chemical structure or compound; or

f. Any other synthetic cannabinoid.

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, Serenity, and Fake Weed.

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 Section 11000 et seq.), listed in one of the UCSA’s schedules of controlled substances (Health and Safety Code Sections 11053 through 11058) regulated by one of the USCA’s Synthetic Drug Laws (Health and Safety Code Sections 11357.5, 11375.5 and 11401), regulated by the CSA (21 USC Section 801 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. (Ord. 1622 § 2 (part), 2015)

9.09.030 Provision, display for sale, sale or distribution of synthetic drugs prohibited.

A. It is unlawful for any person to store, provide, display for sale, distribute or sell any synthetic drug within the city of San Luis Obispo.

B. It is unlawful for any person to permit the storage, provision, display for sale, distribution or sale of any synthetic drugs from any real property owned, possessed, managed or controlled by such person in the city of San Luis Obispo.

C. Merely disclaiming a synthetic drug as “not safe for human consumption” will not avoid the application of this section. (Ord. 1622 § 2 (part), 2015)

9.09.040 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 storing, providing, displaying for sale, distributing or selling is a synthetic drug within the city of San Luis Obispo.

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 fifty dollars);

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. (Ord. 1622 § 2 (part), 2015)

9.09.050 Possession of synthetic drugs prohibited.

It is unlawful for any person to possess any synthetic drug within the city of San Luis Obispo. (Ord. 1622 § 2 (part), 2015)

9.09.060 Public nuisance.

A. It is a public nuisance for any person to store, provide, display for sale, distribute or sell any synthetic drug, or any substance claimed or represented to be a synthetic drug, within the city of San Luis Obispo.

B. It is a public nuisance for any person to allow the storage, provision, display for sale, distribution or sale of any synthetic drug, or any substance claimed or represented to be a synthetic drug, on property owned, controlled or managed by such person within the city of San Luis Obispo.

C. 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 Section 9.09.040.

D. A criminal conviction is not required for establishing the occurrence of nuisance activity pursuant to this chapter. The occurrence of nuisance activity may be established by documented evidence that the nuisance activity was witnessed by a code enforcement officer, peace officer or other witness willing to testify. (Ord. 1622 § 2 (part), 2015)

9.09.070 Confiscation of synthetic drugs.

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. (Ord. 1622 § 2 (part), 2015)

9.09.080 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 store, 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. (Ord. 1622 § 2 (part), 2015)

9.09.090 Penalties.

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 one thousand dollars, 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 for a first violation, a fine not exceeding two hundred dollars for a second violation of the same provision within one year, and a fine not exceeding five hundred dollars for each additional infraction violation of the same provision within one year.

C. The fine amounts set forth above may be modified, from time to time, by city council resolution. In no event shall such fine amounts exceed the amounts authorized by state law.

D. 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.

E. In addition to the penalties provided in this section, any public nuisance under this chapter 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. The city shall also be entitled to recover its full reasonable costs of abatement. The prevailing party in any proceeding associated with the abatement of a public nuisance 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.

F. In lieu of issuing a criminal citation, the city may issue an administrative citation pursuant to Chapter 1.16 to any person responsible for committing, causing or maintaining a violation of this chapter. Nothing in this section shall preclude the city from also issuing a citation upon the occurrence of the same offense on a separate day.

G. The remedies set forth in this chapter are cumulative and additional to any and all other legal remedies available whether set forth elsewhere in the San Luis Obispo Municipal Code, or in state or federal laws, regulations, or case law. (Ord. 1622 § 2 (part), 2015)

9.09.100 Seizure of evidence.

Any product(s) or substance(s) possessed, stored, 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. (Ord. 1622 § 2 (part), 2015)

9.09.110 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 Section 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 Sections 11357.5, 11375.5, 11401 and the federal Controlled Substances Act.

C. This chapter shall not be deemed to prohibit any act that is positively permitted, prohibited or preempted by any state or federal law or regulation. (Ord. 1622 § 2 (part), 2015)