Chapter 9.10


9.10.010    Sale of products containing pseudoephedrine.

9.10.020    Retail establishment’s right to refuse sale.

9.10.010 Sale of products containing pseudoephedrine.

A. In this section, unless the context otherwise requires:

1. “Pseudoephedrine product” means any product containing ephedrine or pseudoephedrine and includes any compound, mixture or preparation that contains any detectable quantity of ephedrine, pseudoephedrine, norpseudoephedrine, or phenylpropanolamine or their salts, optical isomers or salts of optical isomers. Product packaging that lists ephedrine, pseudoephedrine, norpseudoephedrine, or phenylpropanolamine as an active ingredient shall constitute prima facie evidence that the product is a pseudoephedrine product.

2. “Retail establishment” means any place of business that offers any pseudoephedrine product for sale at retail.

3. “Permittee” means any person who holds or is required to hold a license or permit to sell drugs at retail pursuant to ARS Title 32, Chapter 18.

B. The operator and the permittee of a retail establishment shall keep all pseudoephedrine products behind a store counter or otherwise in a manner that is inaccessible to customers without the assistance of the operator or an employee of the establishment.

C. A violation of this section is a class one misdemeanor.

D. Any pseudoephedrine products found to be displayed in a retail establishment in violation of subsection B of this section constitute a nuisance and are subject to seizure and disposal by the town in the manner provided in subsection E of this section.

E. Products subject to seizure under this section may be seized by a peace officer under the authority of a search warrant or upon probable cause to believe that the products are subject to seizure pursuant to subsection D of this section. Before removing any products subject to seizure from the retail establishment, the peace officer shall give the operator or permittee of the establishment a reasonable opportunity to remove the products from the area of the establishment accessible to the public, unless the operator or permittee has been afforded this opportunity on a previous occasion within the preceding 12 months.

F. At the time of seizing any products under this section, the peace officer shall deliver a notice of intent to dispose of the seized products. This notice shall include the date and location of the seizure, an inventory of the items seized, a description of how a post-seizure hearing may be requested, the time limit for requesting that hearing, and a warning that failure to request the hearing in a timely manner will result in the disposal and destruction of the seized property. The notice required under this subsection shall be served on the operator or permittee of the retail establishment present at the time of the seizure or, if that person cannot be identified at the time of the seizure, on any employee of the establishment.

G. A person receiving a notice of intent to dispose under this section may request a post-seizure hearing to determine the validity of the seizure within 15 days of receiving the notice. The court shall conduct the hearing within 10 days of the court’s receipt of the request, excluding weekends and holidays. Failure to request the hearing in a timely manner, or failure to attend a scheduled hearing, constitutes a waiver of the right to challenge the validity of the seizure. At the hearing, the town shall have the burden of establishing by a preponderance of the evidence that the property was subject to seizure pursuant to subsections B and D of this section. At the hearing, the court may admit any reliable and relevant evidence. If the court finds that the products were not subject to seizure, it shall order the immediate return of all seized items. If the court finds that the products were properly seized pursuant to this section, the court shall order that the products are forfeited to the town, and shall direct the town to destroy and dispose of the products.

H. The requirements of this section are in addition to any requirements under state and federal law. [Ord. 2005-17 § 1; prior code § 13-2-1.]

9.10.020 Retail establishment’s right to refuse sale.

Any operator, permittee, or employee of a retail establishment may refuse to sell any pseudoephedrine product to any person if the operator, permittee or employee has reason to believe that the product will be used in the unlawful manufacture of methamphetamine or other controlled substance. Facts that give rise to the reason to believe that the product will be used unlawfully include but are not limited to a “suspicious transaction” as defined in ARS 13-3401; the attempted purchase of pseudoephedrine products in excess of the amounts permitted by Arizona law; the attempt to purchase pseudoephedrine products in a series of transactions in an effort to circumvent the limitations on sales; or the attempt to purchase pseudoephedrine products in conjunction with other products, such as red phosphorous or iodine, that are known to be used in manufacturing methamphetamine. Any person who refuses to make a retail sale in accordance with this section is not liable to its customer or any other person for any loss or damage caused in whole or in part by the refusal to sell. [Ord. 2005-17 § 1; prior code § 13-2-2.]