Chapter 9.22
SUBSTITUTED CATHINONES, SYNTHETIC CANNABINOIDS, AND OTHER SYNTHETIC DRUGS

Sections:

9.22.010    Purpose.

9.22.020    Definitions.

9.22.030    Possession, storage, provision, sale, advertisement, use, purchase, and/or distribution of synthetic drugs prohibited.

9.22.040    Declaration of public nuisance.

9.22.050    Summary abatement.

9.22.060    Penalties.

9.22.070    Seizure of evidence.

9.22.080    Exclusions.

9.22.090    Severability.

9.22.010 Purpose.

The purpose of this chapter is to protect the public health and safety of the citizens of St. Helena from the dangers and ill effects of substituted cathinones (commonly called “bath salts,” “jewelry cleaner,” and “glass cleaner”), synthetic cannabinoids (commonly known as “spice” or “K2”), and other synthetic drugs by declaring certain activities involving these drugs to be a public nuisance and subject to all available civil and criminal remedies. Without the prohibitions enacted by this chapter, these synthetic drugs can be possessed by individuals without the city’s ability to control the negative effects to the health, safety and welfare of the citizens of St. Helena. These negative effects include, but are not limited to, psychoactive behavior and reactions, serious injury, and death caused by its consumption. This chapter is not intended to apply to any activity already regulated by the state synthetic drug laws (California Health and Safety Code Sections 11375.5 and 11401), the federal Controlled Substances Act (21 U.S.C. Section 81 et seq.), or any other applicable state or federal law or regulation that would preempt local regulation. (Ord. 13-1 § 2 (part))

9.22.020 Definitions.

As used in this chapter, the following definitions shall apply, unless the context clearly indicates otherwise. If a word is not defined in this section, the common and ordinary meaning of the word shall apply.

“Business” shall have the same meaning ascribed to that term by Section 5.04.010.

“City” shall mean the city of St. Helena, California.

“Distribute,” “distributing,” and “distribution” shall mean to furnish, give away, exchange, transfer, deliver, or supply, whether for monetary gain or not, other than by lawfully administering or dispensing a controlled substance.

“Person” shall mean any individual, group of two or more individuals, collective as defined in the Compassionate Use Act, business, company, corporation, firm, public corporation, partnership, association, club, or any other similar organization or entity.

“Possess,” “possessing,” and “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.

“Provide,” “providing,” and “provision” shall mean offering to distribute or sell a product or substance to any person.

“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.

“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.

“Sell,” “selling,” and “sale” shall mean to furnish, exchange, transfer, deliver, or supply for monetary gain.

“Substituted cathinones (bath salts, jewelry cleaner, glass cleaner)” shall mean any compound, except bupropion or compounds listed under a different schedule, structurally derived from 2-aminopropan-1-one by substitution at the 1-position with either phenyl, naphthyl, or thiophene rings systems, whether or not the compound is further modified in any of the following ways:

1.    By substitution in the ring system to any extent with alkyl, alkylenedioxy, alkoxy, haloalkyl, hydroxyl, or halide substituents, whether or not further substituted in the ring system by one or more other univalent substituents; or

2.    By substitution at the 3-position with an acyclic alkyl substituent; by substitution at the 2-amino nitrogen atom with alkyl, dialkyl, benzyl, or methoxybenzyl groups; or

3.    By inclusion of the 2-amino nitrogen atom in a cyclic structure.

“Synthetic cannabinoids (spice or K2)” shall mean any of the following cannabinoids, their salts, isomers and salts of isomers, unless specifically excepted, whenever the existence of these salts:

1.    Naphthoylindoles. Any compound containing a 3-(1-naphthoyl)indole structure with substitution at the nitrogen atom of the indole ring by alkyl, haloalkyl, alkenyl, cycloalkymethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl or 2-(4-morpholinyl)ethyl group, whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent.

2.    Naphthylmethylindoles. Any compound containing a 1H-indol-3-yl-(1-naphthyl) methane structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkymethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl or 2-(4-morpholinyl)ethyl group whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent.

3.    Naphthoylpyrroles. Any compound containing a 1H-indol-3-yl-(1-naphthyl) methane structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkymethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl or 2-(4-morpholinyl)ethyl group whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent.

4.    Naphthylmethylindenes. Any compound containing a naphthylideneindene structure with substitution at the 3-position of the indene ring by an alkyl, haloalkyl, alkenyl, cycloalkymethyl, cycloalkylethyl, 1-(N-methyl-2piperidinyl)methyl or 2-(4-morpholinyl)ethyl group whether or not further substituted in the indene ring to any extent, whether or not substituted in the naphthyl ring to any extent.

5.    Phenylacetylindoles. Any compound containing a 3-phenylacetylindole structure with substitution at the nitrogen atom of the indole ring by alkyl, haloalkyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl or 2-(4-morpholinyl)ethyl group whether or not further substituted in the indole ring to any extent, whether or not substituted in the phenyl ring to any extent.

6.    Cyclohexylphenols. Any compound containing a 2-(3-hydroxycyclohexyl)phenol structure with substitution at the 5-position of the phenolic ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2piperidinyl)methyl or 2-(4-morpholinyl)ethyl group whether or not substituted in the cyclohexyl ring extent.

7.    Benzoylindoles. Any compound containing a 3-(benzoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl or 2-(4-morpholinyl)ethyl group whether or not further substituted in the indole ring to any extent and whether or not substituted in the phenyl ring to any extent.

8.    2,3-Dihydro-5-methyl-3-(4-morpholinylmethyl)pyrrolo [1,2,3-de]-1, 4-benzoxazin-6-yl]-1-napthalenylmethanone. Some trade or other names: WIN 55,212-2.

9.    9-(hydroxymethyl)-6, 6-dimethyl-3-(2-methylocatan-2-yl)-6a,7,10,10a-tetrahydrobenzo[c]chromen-1-ol. Some trade or other names: HU-210, HU-211.

10.    Adamantoylindoles. Any compound containing a 3-(1-adamantoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl) methyl or 2-(4-morpholinyl)ethyl group, whether or not further substituted in the indole ring to any extent and whether or not substituted in the adamantyl ring system to any extent.

“Synthetic drug” shall include substituted cathinones and synthetic cannabinoids, as those terms are defined by this section. (Ord. 13-1 § 2 (part))

9.22.030 Possession, storage, provision, sale, advertisement, use, purchase, and/or distribution of synthetic drugs prohibited.

A.    It is unlawful and a threat to public safety for any person to possess, store, provide, sell, advertise, use, purchase, or distribute any synthetic drug within the city.

B.    The fact a synthetic drug is marketed, sold, distributed, delivered, traded, bartered, or labeled as “not for human consumption” (or words of similar effect) or identified as having a lawful use does not exempt a person from the application of this chapter.

C.    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.

D.    The law enforcement personnel enforcing this section 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 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 “bath salts” or “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 11357.5”);

4.    The product is significantly more expensive than products that are used for that product’s marketed use (such as one-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, methamphetamine or marijuana); or

6.    The product’s name or packaging uses images or slang referencing an illicit drug (such as “spice,” “K-2,” “Eight Ballz,” or “Green Buddha”). (Ord. 13-1 § 2 (part))

9.22.040 Declaration of public nuisance.

A.    The storage, provision, sale, advertisement, purchase, or distribution of any synthetic drug from any property, structure, or building in the city is declared to be a public nuisance.

B.    Civil Remedies Available—Remedies Cumulative. In addition to the penalties provided in Section 9.22.060, 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. All remedies herein are cumulative and nonexclusive. (Ord. 13-1 § 2 (part))

9.22.050 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 law enforcement personnel, 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, that violation shall be punishable by the summary abatement procedures set forth in Section 1.12.130, including the immediate seizure of any synthetic drugs. If law enforcement personnel confiscate any synthetic drugs pursuant to this section, such synthetic drugs shall be stored pending the conclusion of a post-seizure hearing pursuant to Section 1.12.130 and the conclusion of any related criminal case. Law enforcement personnel shall give notice of a violation of this chapter by issuing a citation to any and all responsible persons identified by law enforcement. The citation shall also give notice of the right to request an administrative hearing to challenge the validity of the citation and the time for requesting that hearing. (Ord. 13-1 § 2 (part))

9.22.060 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 ($1,000.00), or by both such fine and imprisonment; 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. Law enforcement personnel shall give notice of a violation of this chapter by issuing a citation to any and all responsible persons identified by law enforcement.

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 year, and a fine not exceeding five hundred dollars ($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 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 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 as provided in Section 9.22.040 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 nonexclusive.

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. 13-1 § 2 (part))

9.22.070 Seizure of evidence.

Any products or substances stored, possessed, provided, distributed, or sold in violation of any provision of this chapter shall be seized and stored in accordance with law. (Ord. 13-1 § 2 (part))

9.22.080 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 are specifically permitted by California law.

B.    This chapter shall not apply to drugs or substances that are prohibited by state or federal law, including without limitation the state synthetic drug laws (California Health and Safety Code Sections 11375.5 and 11401), and the federal Controlled Substances Act (21 U.S.C. Section 81 et seq.).

C.    This chapter shall not be deemed to prohibit any act that is permitted, prohibited, or preempted by any state or federal law or regulation. (Ord. 13-1 § 2 (part))

9.22.090 Severability.

This chapter and the various parts thereof are hereby declared to be severable. Should any section or part of this chapter be declared by the courts to be unconstitutional, void or invalid, such decision shall not affect the validity of the chapter as a whole, or any portion thereof other than the part or section declared to be unconstitutional, void or invalid. (Ord. 13-1 § 2 (part))