Editor's note: Chapter 13, Drug Paraphernalia, added by
Ord. No. 605, effective August 26, 1982, renumbered to be Chapter
14 by Ord. No. 800, effective August 8, 2008.
The Council has been aware of and is concerned about the existence
of "head shops" and other establishments engaged in the sale of paraphernalia
associated with drug use. Recent legal decisions, including a decision
of the United States Supreme Court, have indicated that local regulations
may be effectively adopted to deal with this situation. The Council
finds that such establishments serve to entice young people and others
to abuse substances which are known to be harmful and unsafe for human
consumption. The Council further finds that this situation creates
a problem of such proportion within the community as to require further
legislation on this subject. For the foregoing reasons, among others,
regulation in this area is deemed necessary and desirable in the interests
of the public health, safety, and general welfare.
(§ 1, Ord. 605, eff. August 26, 1982, as renumbered by § 2, Ord. 800, eff. August 8, 2008)
For the purposes of this chapter, unless otherwise apparent
from the context, certain words and phrases used in this chapter are
defined as follows:
"Controlled substance"
shall mean marijuana, hashish, PCP, and any controlled substance
defined in the Controlled Substances Act.
"Drug paraphernalia"
shall mean 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, repackaging, storing, containing, concealing, injecting,
ingesting, inhaling, or otherwise introducing into the human body
a controlled substance in violation of the Controlled Substances Act.
"Drug paraphernalia" shall include, but shall not be limited to:
(1)
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Kits used, intended for use, or designed for use in planting,
propagating, cultivating, growing, or harvesting any species of plant
which is a controlled substance or from which a controlled substance
can be derived;
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(2)
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Kits used, intended for use, or designed for use in manufacturing,
compounding, converting, producing, processing, or preparing controlled
substances;
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(3)
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Isomerization devices used, intended for use, or designed for
use in increasing the potency of any species of plant which is a controlled
substance;
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(4)
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Testing equipment used, intended for use, or designed for use
in identifying or in analyzing the strength, effectiveness, or purity
of controlled substances;
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(5)
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Scales and balances used, intended for use, or designed for
use in weighing or measuring controlled substances;
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(6)
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Diluents and adulterants, such as quinine hydrochloride, mannitol,
mannite, dextrose, and lactose, used, intended for use, or designed
for use in cutting controlled substances;
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(7)
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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;
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(8)
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Blenders, bowls, containers, spoons, and mixing devices used,
intended for use, or designed for use in compounding controlled substances;
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(9)
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Capsules, balloons, envelopes, and other containers used, intended
for use, or designed for use in packaging small quantities of controlled
substances;
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(10)
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Containers and other objects used, intended for use, or designed
for use in storing or concealing controlled substances;
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(11)
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Hypodermic syringes, needles, and other objects used, intended
for use, or designed for use in parenterally injecting controlled
substances into the human body; and
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(12)
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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:
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(i)
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Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes
with or without screens, permanent screens, hashish heads, or punctured
metal bowls;
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(ii)
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Water pipes;
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(iii)
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Carburetion tubes and devices;
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(iv)
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Smoking and carburetion masks;
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(v)
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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;
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(vi)
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Miniature cocaine spoons and cocaine vials;
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(vii)
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Chamber pipes;
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(viii)
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Carburetor pipes;
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(ix)
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Electric pipes;
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(x)
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Air-driven pipes;
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(xi)
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Chillums;
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(xii)
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Bongs; and
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(xiii)
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Ice pipes or chillers.
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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:
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(1)
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Statements by an owner or by anyone in control of the object
concerning its use;
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(2)
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Prior convictions, if any, of an owner, or of anyone in control
of the object, under any State or Federal law relating to any controlled
substance;
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(3)
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The proximity of the object, in time and space, to a direct
violation of the Controlled Substances Act;
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(4)
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The proximity of the object to controlled substances;
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(5)
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The existence of any residue of controlled substances on the
object;
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(6)
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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 to 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 Substances Act, shall not prevent a finding that
the object is intended for use, or designed for use, as drug paraphernalia;
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(7)
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Instructions, oral or written, provided with the object concerning
its use;
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(8)
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Descriptive materials accompanying the object which explain
or depict its use;
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(9)
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National and local advertising concerning its use;
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(10)
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The manner in which the object is displayed for sale;
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(11)
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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;
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(12)
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Direct or circumstantial evidence of the ratio of the sales
of the object to the total sales of the business enterprise;
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(13)
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The existence and scope of legitimate uses for the object in
the community; and
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(14)
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Expert testimony concerning its use.
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Except as otherwise provided in this chapter, 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.
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(§ 1, Ord. 605, eff. August 26, 1982, as renumbered by § 2, Ord. 800, eff. August 8, 2008)
Except as authorized by law, it shall be unlawful:
(a) For
any person to wilfully maintain or operate any business knowing, or
under circumstances where one reasonably should know, that drug paraphernalia
is displayed at such business; and
(b) For
any person who is the owner of a business, an employee thereof, or
a person who works at such business as an agent of the owner to wilfully
display drug paraphernalia at such a business.
(§ 1, Ord. 605, eff. August 26, 1982, as renumbered by § 2, Ord. 800, eff. August 8, 2008)
Except as authorized by law, it shall be unlawful for any person
to wilfully distribute to another 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, 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 any law of the State.
(§ 1, Ord. 605, eff. August 26, 1982, as renumbered by § 2, Ord. 800, eff. August 8, 2008)
No provision of this chapter shall be deemed, either directly
or indirectly, to authorize any act which is otherwise prohibited
by any law of the State or to require any act which is otherwise prohibited
by any law of the State. No provision of this chapter is intended
to, or shall be interpreted to, either directly or indirectly, prohibit
any act or acts which are prohibited by any law of the State.
(§ 1, Ord. 605, eff. August 26, 1982, as renumbered by § 2, Ord. 800, eff. August 8, 2008)
Any person who violates any provision of this chapter shall be guilty of an infraction and, upon conviction, shall be punishable by (a) a fine not exceeding $50 for a first violation; (b) a fine not exceeding one hundred dollars ($100.00) for a second violation within one year; and (c) a fine not exceeding $250 for each additional violation within one year. A person who violates the provisions of Section
4-14.03 of this chapter shall be deemed to be guilty of a separate offense for each day, or portion thereof, during which the violation continues. A person who violates the provisions of Section
4-14.04 of this chapter shall be guilty of a separate offense for each item of drug paraphernalia which is distributed.
(§ 1, Ord. 605, eff. August 26, 1982, as renumbered by § 2, Ord. 800, eff. August 8, 2008)
The operation or maintenance of any business or establishment
contrary to the provisions of this chapter shall be and the same is
hereby declared to be a public nuisance which, in addition to or in
lieu of criminal proceedings, may be abated, removed, or enjoined
by appropriate legal action brought by the City Attorney.
(§ 1, Ord. 605, eff. August 26, 1982, as renumbered by § 2, Ord. 800, eff. August 8, 2008)
If any section, sentence, clause, phrase, or provision of this
chapter, or the application thereof to any person or circumstance,
is for any reason held to be invalid, such invalidity shall not affect
the validity of the remaining portions or provisions of this chapter
or their applicability to distinguishable situations or circumstances.
In enacting this chapter, it is the desire of the Council to regulate
validly to the full measure of its legal authority in the public interests,
and, to that end, the Council would have adopted this chapter, and
each section, sentence, clause, phrase, and portion thereof, irrespective
of the fact that any one or more sections, sentences, clauses, phrases,
or portions thereof might be invalid, in whole or in part, as applied
to any particular situation or circumstance, and to this end the provisions
of this chapter are intended to be severable.
(§ 1, Ord. 605, eff. August 26, 1982, as renumbered by § 2, Ord. 800, eff. August 8, 2008)