City of Franklin, NH Chapter 254 Smoking Products

[HISTORY: Adopted by the City Council of the City of Franklin as indicated in article histories. Amendments noted where applicable.]

Article I Sale and Possession of Illegal Smoking Substances [1]

[Adopted 1-3-2011 by Ord. No. 03-11]

[1] Editor's Note: The title of this article was changed from "Sale and Possession of Illegal Smoking Products" to "Sale and Possession of Illegal Smoking Substances" 9-5-2019 by Ord. No. 06-20.

§ 254-1 Prohibited activities.

A. It shall be unlawful for any person to use, possess, purchase, attempt to purchase, sell, offer to sell, give away, deliver or publicly display for sale any illegal smoking products (which includes but is not limited to the product known as "K2", "spice" or "Kratom") within the City limits of the City of Franklin, New Hampshire.

[Amended 8-5-2019 by Ord. No. 05-20]

B. For the purpose of this article, the following terms shall be defined as follows:

ILLEGAL SMOKING PRODUCT

Any substance, whether described as tobacco, herbs, incense, spice or any blend thereof, which, when smoked or ingested, mimics the effects of a controlled substance, regardless of whether the substance is marketed for the purpose of being smoked or ingested, which includes any one or more of the following chemicals:

(1) One cis or trans tetrahydrocannabinol, and its optical isomers;

(2) Six cis or trans tetrahydrocannabinol, and its optical isomers;

(3) Three, four cis or trans tetrahydrocannabinol, and its optical isomers;

(4) CP 47,497 and homologues: 2-[(1R,3S)-3-hydroxycyclohexyl]-5-(2-methyloctan-2-yl)phenol;

(5) HU-210: [(6aR, 10aR)-9-(hydroxymethyl)-6, 6-dimethyl-3-(2-methyloctan-2-yl)-6a, 7, 10, 10a-tetrahydrobenzo[c]chromen-1-ol)], also known as 6aR-trans-3-(1, 10 dimethylheptyl)-61, 7, 10, 10a-tetrahydro1hydroxy-6, 6-dimethyl-6H-dibenzo [b,d] pyran-9-methanol;

(6) JWH-018: 1-pentyl-3-(1-naphthoyl)indole, also known as naphthalen-1-yl-(1-pentylindol-3-yl)methanone, also known as "spice";

(7) JWH-073: 1-butyl-3-(1-naphthoyl)indole, also known as naphthalen-1-yl-(1-butylindol-3-yl)methanone;

(8) JWH-200: 1-[2-(4-morpholinyl)ethyl]-3-(1-naphthoyl)indole;

(9) JWH-081: 1-pentyl-3-(2-methoxyphenylacetyl)indole, also known as 2-(2-methoxyphenyl)-1-(1-pentylindol-3-yl)ethanone;

(10) JWH-250: 1-pentyl-3-(2-methoxyphenylacetyl)indole, also known as 2-(2-methoxyphenyl)-1-(1-pentylindol-3-yl)ethanone;

(11) Salvia divinorum or salvinorin 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;

(12) Other synthetic cannabinoids or derivatives, salts, isomers, or salts of isomers with similar chemical structure and pharmacological activity as the substances defined above; or

(13) Any compound of the structures listed in this section, regardless of numerical designation of atomic positions.

(14) (aE,2S,3S,12bS)-3-ethyl-1,2,3,4,6,7,12,12b-octahydro-8-methoxy-a-(methoxymethylene)­indolo[2,3-a]quinolizine-2-acetic acid methyl ester (CAS Registry Number: 4098-40-2). Other names: (E)-16,17-didehydro-9,17-dimethoxy-17,18-seco-20a-yohimban-16-carboxylic acid methyl ester, 9-methoxycorynantheidine, and SK&F 12711 also known as Mitragynine or Kratom (Mitragyna speciosa).

[Amended 8-5-2019 by Ord. No. 05-20]

OPTICAL ISOMERS

Two compounds which contain the same number and kinds of atoms and bonds, and different spatial arrangements of the atoms, but which have nonsuperimposable mirror images.

PERSON

An individual, corporation, partnership, wholesaler, retailer, and any licensed or unlicensed business, including clerk, manager, or owner of a business.

§ 254-2 Exceptions.

A. It is not an offense under this article if the person was acting at the direction of an authorized agent of the City of Franklin, including but not limited to officers of the Franklin Police Department, to enforce or ensure compliance with this article prohibiting the sale of the aforementioned substances.

B. If the New Hampshire Legislature adopts a statute enacting criminal penalties for the possession, sale or delivery of any illegal smoking product as defined by this article, then, upon the effective date of such state statute, this article shall no longer be deemed effective. However, a violation of this article occurring prior to the effective date of such state statute may be prosecuted after the effective date of the state statute.

C. This article does not apply to any person who commits any act described in this article pursuant to the direction or prescription of a licensed physician or dentist authorized to direct or prescribe such act. This article likewise does not apply to the inhalation of anesthesia for a medical purpose or dental purpose.

§ 254-3 Violations and penalties.

Any person found to be in violation of this article is subject to the provisions of § 1-16, General penalty.

§ 254-4 Forfeiture of illegal substances.

In addition to any penalty provided for in § 254-3, if any of the aforementioned substances listed in § 254-2 are found in the possession of any person, the substances will be forfeited to the city and may be destroyed by law enforcement officials.

§ 254-5 (Reserved) [1]

[1] Editor's Note: Former § 254-5, Severability; repealer; when effective, was repealed 9-5-2019 by Ord. No. 06-20. See now § 254-9.

Article II Sale and Possession of Smoking Products

[Adopted 9-5-2019 by Ord. No. 06-20]

§ 254-6 Definitions.

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

E-CIGARETTE

Any electronic smoking device composed of a mouthpiece, a heating element, a battery, and electronic circuits that provides a vapor of pure nicotine mixed with propylene glycol to the user as the user simulates smoking. This term shall include such devices whether they are manufactured as e-cigarettes, e-cigars, or e-pipes, or under any other product name.

LIQUID NICOTINE

Any liquid product composed either in whole or in part of pure nicotine and propylene glycol and manufactured for use with e-cigarettes.

TOBACCO PRODUCT

Any product containing tobacco, including, but not limited to, cigarettes, smoking tobacco, cigars, chewing tobacco, snuff, pipe tobacco, smokeless tobacco, and smokeless cigarettes.

§ 254-7 Purchase, use and possession of tobacco products or anything that simulates smoking.

A. No person under the age of 21 shall:

(1) Purchase a tobacco product, e-cigarettes, or liquid nicotine.

(2) Use or possess a tobacco product, e-cigarettes, or liquid nicotine.

B. No person or business shall:

(1) Sell or provide a tobacco product, e-cigarettes, or liquid nicotine to a person under the age of 21.

C. For the purposes of this article, the terms "tobacco product," "e-cigarette," and "liquid nicotine" shall include any product or device defined herein, and amended from time to time, and in NH RSA 126K, all other provisions of which statute are incorporated herein.

§ 254-8 Violations and penalties.

Any person violating the provisions of this article shall be subject to a fine of up to $50 for a first offense, and up to $100 for a second or subsequent offense.

§ 254-9 Severability; repealer; when effective.

A. If any provision of these articles shall be held to be invalid by a court of competent jurisdiction, then such provision shall be considered separately and apart from the remaining provisions of these articles, which shall remain in full force and effect.

B. All ordinances, resolutions, orders or parts thereof or in conflict with these articles are hereby voided.

C. These articles shall be in full force and effect immediately upon passage.