Chapter 8.12
DRUG PARAPHERNALIA
Sections:
8.12.010 Findings.
8.12.020 Definitions.
8.12.030 Possession of drug paraphernalia.
8.12.040 Manufacture or delivery of drug paraphernalia.
8.12.050 Advertisement of drug paraphernalia.
8.12.060 Civil forfeiture.
8.12.070 Interpretation.
8.12.080 Special provisions.
8.12.090 Severability.
8.12.010 Findings.
The Livermore City Council has become aware of and is concerned over the general proliferation of “head shops” and other establishments engaged in the sale of paraphernalia associated with drug use. The City Council finds that such establishments serve only to entice young people and others to abuse substances which are known to be harmful and unsafe for human consumption. The City Council further finds that this situation has created a problem of such large proportions as to require further legislation on the subject. (Ord. 2065 § 1(A), 2018; Ord. 1222 § 1, 1987)
8.12.020 Definitions.
A. For the purposes of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section:
1. “Controlled substance” means marijuana, hashish, PCP, and any controlled substances as defined in the Controlled Substances Act.
2. “Controlled Substances Act” means the California Uniform Controlled Substances Act (commencing with Section 11000 of the Health and Safety Code of the State of California).
3. “Drug paraphernalia” means all equipment, products and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, inhaling, or otherwise introducing into the human body a controlled substance in violation of the Controlled Substances Act. It includes, but is not limited to:
a. Kits used, intended for use or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;
b. Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances;
c. Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance;
d. Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness or purity of controlled substances;
e. Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;
f. Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use, or designed for use in cutting controlled substances;
g. Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;
h. Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances;
i. Capsules, balloons, envelopes and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances;
j. Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances;
k. Hypodermic syringes, needles and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body;
l. Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as:
i. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
ii. Water pipes;
iii. Carburetion tubes and devices;
iv. Smoking and carburetion masks;
v. Roach clips; meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand;
vi. Miniature cocaine spoons, and cocaine vials;
vii. Chamber pipes;
viii. Carburetor pipes;
ix. Electric pipes;
x. Air-driven pipes;
xi. Chillums;
xii. Bongs;
xiii. Ice pipes or chillers.
B. In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:
1. Statements by an owner or by anyone in control of the object concerning its use;
2. Prior convictions, if any, of any owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance;
3. The proximity of the object, in time and space, to a direct violation of the Controlled Substances Act;
4. The proximity of the object to controlled substances;
5. The existence of any residue of controlled substances on the object;
6. Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows or should reasonably know, intend use the object to facilitate a violation of the Controlled Substances Act; the innocence of an owner, or of anyone in control of the object, as to a direct violation of the Controlled Act shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;
7. Instructions, oral or written, provided with the object concerning its use;
8. Descriptive materials accompanying the object which explain or depict its use;
9. National and local advertising concerning its use;
10. The manner in which the object is displayed for sale;
11. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
12. Direct or circumstantial evidence of the ratio of sales of the object(s) to the total sales of the business enterprise;
13. The existence and scope of legitimate uses for the object in the community;
14. Expert testimony concerning its use.
C. Except as otherwise provided in this section, or unless the context otherwise requires, in interpreting or applying the provisions of this chapter, words which are used in this chapter and which are defined in Chapter 1 of the Controlled Substances Act shall have the meaning ascribed to them in Chapter 1 of the Controlled Substances Act. (Ord. 1222 § 1, 1987)
8.12.030 Possession of drug paraphernalia.
It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of the Controlled Substances Act. Any person who violates this section is guilty of an infraction. (Ord. 1222 § 1, 1987)
8.12.040 Manufacture or delivery of drug paraphernalia.
It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of the Controlled Substances Act. Any person who violates this section is guilty of a misdemeanor. (Ord. 1222 § 1, 1987)
8.12.050 Advertisement of drug paraphernalia.
It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia. Any person who violates this section is guilty of a misdemeanor. (Ord. 1222 § 1, 1987)
8.12.060 Civil forfeiture.
A. All drug paraphernalia as defined by LMC 8.12.020 are subject to forfeiture.
B. Drug paraphernalia used or possessed in violation of this chapter or the Controlled Substances Act may be seized by any peace officer and in aid of such seizure a search warrant may be issued as prescribed by law. Drug paraphernalia seized as provided in this section shall be disposed of as provided in Chapter 8 (commencing with Section 11470) of the Controlled Substances Act. (Ord. 1222 § 1, 1987)
8.12.070 Interpretation.
In determining whether a violation of the provisions of this chapter has occurred, the court or other authority shall apply the following criterion: Each defendant charged with violating this chapter must have general criminal intent with respect to the offense alleged before a violation may be deemed to have occurred. With respect to LMC 8.12.040, the necessary criminal intent will exist if the defendant charged with a violation thereof actually knew or reasonably should have known that such defendant was aiding or facilitating an act proscribed by LMC 8.12.040. (Ord. 1222 § 1, 1987)
8.12.080 Special provisions.
A. Notwithstanding the provisions of LMC 8.12.030, 8.12.040, or 8.12.050, if any drug paraphernalia is used, intended for use, possessed with intent to use, delivered for use, possessed with intent to deliver for use, or manufactured with intent to deliver for use, in connection with a violation of subdivision (b) of Section 11357, or subdivision (b) of Section 11360, of the Controlled Substances Act, the punishment which may be imposed for conviction of a violation of LMC 8.12.030, 8.12.040, or 8.12.050 shall not be greater than the punishment which may lawfully be imposed for conviction of a violation of Section 11357, or Section 11360, of the Controlled Substances Act.
B. To the extent permitted by law, the provisions of Sections 11361.5 and 11361.7 of the Controlled Substances Act shall apply to any arrest or conviction for which a special penalty is provided pursuant to the provisions of LMC 8.12.090. (Ord. 1222 § 1, 1987)
8.12.090 Severability.
If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable. (Ord. 1222 § 1, 1987)