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Ord 747ORDINANCE NO. 747 AN ORDINANCE OF THE CITY OF POWAY, CALIFORNIA, ADDING CHAPTER 9.08 TO THE POWAY MUNICIPAL CODE MAKING CERTAIN ACTIVITIES INVOLVING SYNTHETIC STIMULANTS AND SYNTHETIC CANNABINOIDS A PUBLIC NUISANCE SUBJECT TO CIVIL ABATEMENT AND PENALTIES WHEREAS, the City Council is concerned for the safety and health of Poway citizens because the use, sale and distribution of synthetic stimulants and synthetic cannabinoids pose serious threats to their health, safety and general welfare; and WHEREAS, synthetic cannabinoids commonly known as "herbal incense," "spice" or "K2," and synthetic stimulants commonly known as "bath salts" are growing in use and have become an increasingly significant problem in California, most notably among high school and college students, as discussed in California Assembly Concurrent Resolution No. 69 (hereinafter "ACR -69 ") (September 6, 2011); and WHEREAS, due to sophisticated marketing, the products that contain these synthetic cannabinoids or stimulants are perceived as "legal" alternatives to marijuana and cocaine despite the fact they are typically advertised as herbal incense, bath salts or plant food (as more particularly described in ACR -69); and WHEREAS, synthetic stimulants have been falsely marketed as standard bath salts for use in one's bath, but in fact have been ingested, snorted and used intravenously by many people throughout the United States, in San Diego County, and in the City of Poway, with serious, deleterious effects to such persons' health including extreme anxiety /agitation, sometimes progressing to violent behavior, extreme paranoia, delusional thinking, visual and auditory hallucinations, suicidal thoughts /actions, increased blood pressure and heart rate, renal and kidney failure; and WHEREAS, synthetic cannabinoids have been falsely marketed as standard incense used for its aromatic qualities but in fact is being ingested or smoked by many people throughout the United States, in San Diego County, and in the City of Poway, with serious deleterious effects to the persons' health including cardiac arrest, seizures, anxiety /agitation, sometimes progressing to violent behavior, extreme paranoia, delusional thinking, visual and auditory hallucinations, suicidal thoughts /actions, increased blood pressure and heart rate, renal and kidney failure; and WHEREAS, according to credible news reports and authorities, synthetic stimulants and synthetic cannabinoids have caused or been linked to numerous deaths, medical emergencies, acts of violence, and other incidents throughout the United States and Europe, including San Diego County and the City of Poway; and WHEREAS, On October 9, 2011, Health and Safety Code § 11375.5 was enacted, criminalizing the sale, distribution and possession for sale or distribution of psychoactive synthetic stimulants commonly sold as "bath salts," and on January 1, 2012, Health and Safety Code § 11357.5 became effective, criminalizing the sale, Ordinance No. 747 Page 2 distribution and possession for sale or distribution of "synthetic cannabinoids" commonly marketed as "herbal incense," which new laws are aimed at combating the growing popularity and dangerous health risks of these so- called "designer drugs "; and WHEREAS, in July of 2012, the President signed the Synthetic Drug Abuse Prevention Act, which had the effect of designating several of the synthetic stimulants used to make bath salts and herbal incense as Schedule I substances, the most restrictive category under the Controlled Substances Act. Schedule I status is reserved for those substances with a potential for abuse, no currently accepted use for treatment in the United States and a lack of accepted safety for use of the drug under medical supervision; and WHEREAS, notwithstanding the federal and state laws, there remain serious gaps in the applicable law that warrant further action at a local level including, but not limited to, rapid alteration of the chemical structure, compound or content of synthetic stimulants and synthetic cannabinoids to avoid earlier enacted bans and regulations; and WHEREAS, Poway retailers are or should be aware of significant ill- effects of synthetic stimulants and synthetic cannabinoids, yet some may nonetheless be selling these dangerous products within the City, described as incense or aromatics, but typically used for human ingestion; and WHEREAS, the ordinance is not designed to control the use, sale or distribution of normal bath salts or incense that do not contain designer chemical compounds that elicit psychotropic effects; and WHEREAS, representatives of the San Diego County Sheriff's Office who provide law enforcement and safety services to the City of Poway have recommended an ordinance to strongly discourage the availability of synthetic stimulants and /or synthetic cannabinoids in stores and markets in the city; and WHEREAS, based upon the facts described above, and other good and reliable information presented to and considered thereby, the City Council determined that the distribution of synthetic stimulants and synthetic cannabinoids within the City of Poway constitutes a public nuisance because it is injurious to the health, safety and general welfare of Poway citizens; and WHEREAS, the City Council has the authority to declare public nuisances as provided by Government Code § 38771. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN AS FOLLOWS: SECTION 1: Chapter 9.08 of the Poway Municipal Code is hereby added to read as follows: Ordinance No. 747 Page 3 9.08.010. Purpose and Intent. The purpose and intent of this chapter is to protect the public health and safety within the City of Poway from the dangers and ill effects of synthetic stimulants and synthetic cannabinoids by declaring certain activities involving these drugs to be a public nuisance and subject to all available civil remedies. 9.08.020. Definitions. The following words and phrases, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise: A. Synthetic Stimulants — As used in this Chapter, the terms "synthetic stimulant" or "synthetic stimulants" are defined as follows: 1. Any material, compound, mixture, or preparation, except bupropion or compounds listed under a different schedule, which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers, esters, or ethers, and salts of isomers, esters, or ethers whenever the existence of such salts, isomers, esters, or ethers, and salts of isomers, esters, or ethers is possible within any of the following specific chemical designations: a. Naphthylpyrovaleron, whether or not further substituted in the naphthyl ring to any extent with alkyl, alkoxy, alkylenedioxy, haloalkyl, or halide substituents, whether or not further substituted in the naphthyl ring by one or more other univalent substituents, or whether or not further substituted in the carbon chain at the 3 -, 4 -, or 5- position with an alkyl substituent. b. 2- amino -1- phenyl -1- propanone (cathinone) or variation in any of the following ways: (1) By substitution in the phenyl ring to any extent with alkyl, alkoxy, alkylenedioxy, haloalkyl, or halide substituents, whether or not further substituted in the phenyl ring by one or more other univalent substituents. (2) By substitution at the 3- position with an alkyl substituent. (3) By substitution at the 2 -amino nitrogen atom with alkyl, dialkyl, or benzyl groups, or by inclusion of the 2 -amino nitrogen atom in a cyclic structure. 2. "Synthetic stimulants" are commonly marketed under the following trade names: Bliss, Blizzard, Blue Silk, Bonzai Grow, Charge Plus, Charlie, Cloud Nine, Euphoria, Hurricane, Ivory Snow, Ivory Wave, Lunar Wave, Ocean, Ocean Burst, Pixie Dust, Posh, Pure Ivory, Purple Wave, Red Dove, Scarface, Snow Leopard, Stardust, Ordinance No. 747 Page 4 Vanilla Sky, White Dove, White Night and White Lightning but may be marketed under other trade names and contain a common disclaimer that these products are "not safe for human consumption." 3. "Synthetic stimulants" do not include normal, standard bath salts that do not contain synthetic chemical compounds listed above that elicit psychoactive or psychotropic stimulant effects. Standard bath salts primarily contain magnesium sulfate (Epsom salts), sodium chloride (table salt), sodium bicarbonate (baking soda), sodium hexametaphosphate (Calgon, amorphous /glassy sodium metaphosphate), sodium sesquicarbonate and borax. B. Synthetic Cannabinoids — As used in this Chapter, the terms "synthetic cannabinoid" or "synthetic cannabinoids" are defined as follows: 1. Any synthetic cannabinoid agonist, including but not limited to the substances listed below and any substances identified as a "synthetic cannabinoid compound" by Health & Safety Code section 11357.5: a. 1- pentyl -3 -(1 -nap hthoyl) indole (JWH -018). b. 1- butyl -3 -(1- naphthoyl) indole (JWH -073). c. 1- 2-[(4- morphoIinyl )ethyl] -3 -(1 -nap hthoyl) indole (JWH -200). d. 5-( 1, 1- di methyl heptyl)- 2 -[(1R,3S)- 3- hydroxycyclohexyl]- p hen ol (CP- 47,497). e. 5 -(1,1- dimethyloctyl) -2 -[(1 R,3S) -3- hydroxycyclohexyl] - phenol (cannabicyclohexanol; CP-47, 497 C8 homologue). Naphthoylindoles: any compound containing a 3- (1- naphthoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, 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 naphthyl ring to any extent. g. Naphthylmethylindoles: any compound containing a 1 H- indol- 3- yl -(1- naphthyl)methane structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, 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 naphthyl ring to any extent. h. Naphthoylpyrroles: any compound containing a 3-(1 -nap hthoyl)pyrrole structure with substitution at the nitrogen atom of the pyrrole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1- (N- methyl -t- Ordinance No. 747 Page 5 piperidinyl)methyl, or 2- (4- morpholinyl)ethyl group, whether or not further substituted in the indene ring to any extent and whether or not substituted in the naphthyl ring to any extent. Naphthylmethylindenes: any compound containing a naphthylideneindene structure with substitution at the 3- position of the indene ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N- methyl -2- piperidinyl)methyl, or 2- (4- morpholinyl)ethyl group, whether or not further substituted in the indene ring to any extent and whether or not substituted in the naphthyl ring to any extent. j. Phenylacetylindoles: any compound containing a 3- phenylacetylindole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, 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. k. 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 -2- piperidinyl)methyl, or 2- (4- morpholinyl)ethyl group, whether or not substituted in the cyclohexyl ring to any extent. Benzoylindoles: any compound containing a 3- (benzoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, 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. m. 2,3- Dihydro -5- methyl -3 -(4- morpholinylmethyl) - pyrrolo- [1,2,3- de] -1,4- benzoxazin- 6- yl] -1- napthalenylmethanone. n. 9- (hydroxymethyl) -6, 6- dimethyl -3 -(2- methyloctan- 2- yl) -6a, 7, 10, 10a- tetra hyd robenzo[c] chromen -1 -ol. o. 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, cycloalkylmethyl, cycloalkylethyl, 1-(N- methyl -2- piperidinyl)methyl, or 2- (4- morphonyl)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. 2. Synthetic cannabinoids products are commonly marketed under the following names: K2, K3, Spice, Genie, Smoke, Pot - Pourri, Buzz, Spice 99, Voodoo, Pulse, Ordinance No. 747 Page 6 Hush, Mystery, Earthquake, Black Mamba, Stinger, Ocean Blue, Serenity, Fake Weed, but may be marketed under other trade names and contain a common disclaimer that these products are "not safe for human consumption." 3. "Synthetic cannabinoids" does not include normal, standard incense that is sold as incense sticks, oils or cones that is commonly used for their aromatic qualities that do not contain any synthetic chemical compounds listed above that elicit psychoactive or psychotropic euphoric effects. C. Distribute — As used in this Chapter, the term "distribute" has the same meaning as set forth in Health & Safety Code § 11012. D. Person — As used in this Chapter, the terms "person" or "persons" has the same meaning as set forth in Health & Safety Code § 11022. 9.08.030. Public Nuisance. A. It is a public nuisance for any person to distribute, sell or possess with the intent to distribute or sell synthetic stimulants and /or synthetic cannabinoids. B. Possession that is not described in subdivision (a) of this section is declared to be a public nuisance when such possession injuriously affects any person or persons, other than the person in possession, in such other person's or persons' health, safety, welfare, or comfortable enjoyment of life or property. 9.08.040. Authority to Administer and Enforce. The provisions of this Chapter shall be administered and enforced by the Director of Development Services, each agent thereof who is assigned to duties which include the enforcement of this chapter, any peace officer, and any other city official authorized to enforce any provision of the Municipal Code, as noted below. 9.08.050. Abatement Authority and Procedures; Other Remedies. A. Public Nuisance. If a public nuisance exists pursuant to this Chapter, any of the persons identified in section 9.08.040 of this Chapter may proceed under Chapter 8.72 Nuisance Abatement Procedure of this Code. B. Civil Remedies. Nothing in this Chapter shall be construed to prevent the City of Poway from pursuing any and all other legal remedies that may be available, including but not limited to civil actions filed by the City Attorney seeking any and all appropriate relief such as civil injunctions, penalties and forfeiture. C. Civil Penalties. Notwithstanding Chapter 1.08 General Penalty, Chapter 8.72 Nuisance Abatement Procedure, Chapter 1.10 Administrative Citations and Penalties, or any other section of this Code to the contrary, any person, entity, or Ordinance No. 747 Page 7 organization that maintains a public nuisance as defined in this Chapter may be subject to civil penalties up to $1,000 for each day said nuisance is in existence. 9.08.060. Severability. This Chapter and the various parts thereof are hereby declared to be severable. Should any section of this Chapter be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the chapter as a whole, or any portion thereof other than the section so declared to be unconstitutional or invalid. SECTION 2: This Ordinance shall be codified. EFFECTIVE DATE: This Ordinance shall take effect and be in force thirty (30) days after its adoption. CERTIFICATION /PUBLICATION: The City Clerk shall certify the adoption of this Ordinance and cause it or a summary of it, to be published with the names of the City Councilmembers voting for and against the same in the Poway News Chieftain, a newspaper of general circulation in the City of Poway within fifteen (15) days after its adoption and shall post a certified copy of this Ordinance in the Office of the City Clerk in accordance with Government Code § 36933. Introduced and first read at a Regular Meeting of the City Council of the City of Poway held the 19th day of February 2013, and thereafter PASSED AND ADOPTED at a regular meeting of said City Council held the 5th day of March 2013. Don Higginson, Mayor ATTEST: I�w� � • l�N Kristen M. Crane, Interim City Clerk Ordinance No. 747 Page 8 STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO) I, Kristen M. Crane, Interim City Clerk of the City of Poway, do hereby certify that the foregoing Ordinance No. 747 was duly adopted by the City Council at a meeting of said City Council held on the 5th day of March 2013, and that it was so adopted by the following vote: AYES: CUNNINGHAM, VAUS, GROSCH, MULLIN, HIGGINSON NOES: NONE ABSENT: NONE DISQUALIFIED: NONE �40.6WV Kristen M. Crane Interim City Clerk City of Poway