CITY OF ENCINITAS CITY COUNCIL AGENDA REPORT Meeting Date: August 15, 2012

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1 CITY OF ENCINITAS CITY COUNCIL AGENDA REPORT Meeting Date: August 15, 2012 TO: FROM: SUBJECT: MAYOR AND CITY COUNCIL CITY ATTORNEY CONSIDERATION OF INTRODUCTION AND FIRST READING OF ORDINANCE ADDING MUNICIPAL CODE CHAPTER 9.26 REGULATING PSYCHOACTIVE BATH SALTS, PSYCHOACTIVE HERBAL INCENSE AND SIMILAR SUBSTANCES (DESIGNER DRUGS COMMONLY KNOW AS BATH SALTS AND SPICE) BACKGROUND: At the Council meeting of May 9, 2012, the Council requested that Staff bring back an ordinance regulating psychoactive bath salts and psychoactive herbal incense (collectively bath salts and incense ). Attached is a draft ordinance forwarded to City by the San Diego County Sheriff s Department on June 18, 2012 and reviewed by the City Attorney s office. As you may be aware, several jurisdictions including Chula Vista, Rialto and South Lake Tahoe have adopted ordinances regulating these substances. According to the Sherriff s Department, after considering other versions of ordinances regulating these substances, the attached ordinance provides the best opportunity for successful enforcement. Bath salts and incense have been linked to numerous deaths, medical emergencies, acts of violence and other negative incidents throughout the United States and Europe. According to reports, the ingestion, snorting and intravenous use of bath salts and incense can create serious health consequences including extreme anxiety and agitation, paranoia, delusional thinking, visual and auditory hallucinations, suicidal actions, increased blood pressure and heart rate, cardiac arrest, seizures and kidney failure. Marketing efforts include packaging and advertising schemes to appeal to teens and young people, including popular cartoon and pop characterizations. Bath salts and incense have been labeled designer drugs which have been manufactured with chemical substances that are intended to mimic and recreate the effects of cocaine and methamphetamine which are illegal, controlled substances under State and Federal law. Nevertheless, at this time, significant gaps remain in Federal and State law warranting further action at the local level. Accordingly, the draft ordinance would do the following: set forth the purpose and intent of the regulations; precisely define bath salts and incense; 08/15/2012 ITEM #09 1

2 prohibit the sale or offering for sale, distribution, delivery, trade or barter bath salts and incense; prohibit the advertisement or display of bath salts or incense; prohibit the representation that a product or substance is bath salt or incense; provide for confiscation and destruction of bath salts or incense; and provide enforcement tools (criminal, civil and administrative). RECOMMENDATION: Introduce Ordinance No , adding Chapter 9.26, entitled Regulation of Psychoactive Bath Salts, Psychoactive Incense and Similar Substances, to the Encinitas Municipal Code. ATTACHMENTS: A. Draft Ordinance B. Proposed Municipal Code Chapter /15/2012 ITEM #09 2

3 ORDINANCE AN ORDINANCE OF THE CITY OF ENCINITAS, CALIFORNIA, ADDING MUNICIPAL CODE CHAPTER 9.26, REGULATING PSYCHOACTIVE BATH SALTS, PSYCHOACTIVE HERBAL INCENSE AND SIMILAR SUBSTANCES The City Council of the City of Encinitas, California, does ordain as follows: SECTION ONE: The Encinitas Municipal Code is hereby amended by adding a new chapter 9.26 entitled Regulation of Psychoactive Bath Salts, Psychoactive Herbal Incense and Similar Substances to read as follows: See attached Attachment A SECTION TWO: This ordinance was introduced on August 15, 2012 PASSED AND ADOPTED this day of 2012 by the following vote to wit: AYES: NAYS: ABSTAIN: ABSENT: ATTESTATION AND CERTIFICTION: Jerome Stocks, Mayor City of Encinitas I hereby certify that this is a true and correct copy of Ordinance No which has been published pursuant to law. Kathy Hollywood, City Clerk 08/15/2012 ITEM #09 3

4 CHAPTER 9.26 REGULATION OF PSYCHOACTIVE BATH SALTS, PSYCHOACTIVE HERBAL INCENSE AND SIMILAR SUBSTANCES Findings. The City Council of the City of Encinitas finds and determines that: A. The chemical compounds defined in Section and similar substances are intoxicating and/or hallucinogenic to humans upon ingestion, and are often used as alternatives to other drugs such as marijuana and methamphetamine; these chemical compounds are potentially dangerous to others; that their long term health effects are unknown; and that these intoxicating chemical compounds create a significant health and safety risk to the citizens of the City of Encinitas and others. B. While having similar or stronger physiological effects than high potency marijuana, these intoxicating chemical compounds do not show a positive reading in traditional law enforcement drug testing, which adds to the desirability and increased use among drug abusers and increases the threat to public health and safety by the avoidance of detection. C. The intoxicating chemical compounds described hereunder are not yet categorized as controlled substances under state and federal law Purpose And Intent. The purpose and intent of this ordinance is to address the dangers that the distribution, purchase, use, or advertisement of psychoactive bath salts, psychoactive herbal incense and similar products pose to the community, and provide the City with reasonable measures to abate the public nuisance created by such conduct Definitions. A. Psychoactive bath salts are defined as follows: 1. Any substance that contains a synthetic chemical compound that elicits psychoactive or psychotropic stimulant effects including, but not limited to, the following substances; 3,4 Methylenedioxymethcathinone (Methylone), 3,4-Methylenedioxypyrovalerone (MDPV), 4-Methylmethcathinone (Mephedrone), 4-Methoxymethcathinone (Methedrone), 4-Fluoromethcathinone (Flephedone), 3-Flouromethcathinone (3-FMC), naphthylpyrovalerone and 2-amino- 1phenyl-1-propanone (cathinone) or any derivatives, synthetic substances and their isomers with similar chemical structure or any chemical alteration of these compounds which exhibit the same effect and/or any other substantially similar chemical structure or compound. 08/15/2012 ITEM #09 4

5 2. Psychoactive bath salts are commonly marketed under the following trade or street 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, Vanilla Sky, White Dove, White Night, and White Lightning but may be marketed under other trade or street names and contain a common disclaimer that these products are, Not safe for human consumption. 3. Psychoactive bath salts do not include normal, standard bath salts that do not contain synthetic chemical compounds such as those 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 sesquicarbonat and Borax. B. Psychoactive herbal incense is defined as: 1. Any organic or inorganic product consisting of a material that contains a synthetic chemical compound that elicits psychoactive or psychotropic euphoric effects including but not limited to the following: any synthetic cannabinoid compound that contains 1- pentyl -3- (1-naphthoyl) indole (JWH-018), 1-butyl-3-(1-naphtoyl) indole (JWH-073), 1-2-(4-morpholinyl) ethyl -3-(1-naphthoyl) indole (JWH-200), 5-(1,1-dimetheylheptyl)- 2(1R,3S)-3-hydroxycyclohexyl)-phenol, (CP-47,497), 5-(1,1-dimethyloctyl)-2-(1R,3S)3- hydroxycyclohexyl)-phenol, (cannabicyclohexanol:cp-47,497 C8 homologue) or any derivatives, synthetic substances and their isomers with similar chemical structure or any chemical alteration of these compounds which exhibit the same effects and/or any other substantially similar chemical structure or compound. 2. Psychoactive herbal incense products are commonly marketed under the following trade or street names: K2, K3, Spice, Genie, Smoke, Pot-Pourri, Buzz, Spice99, Voodoo, Pulse, Hush, Mystery, Earthquake, Black Mamba, Stinger, Ocean Blue, Serenity, Fake Weed, but may be marketed under other trade or street names, and may contain a common disclaimer that these products are, Not safe for human consumption. 3. Psychoactive herbal incense does not include normal, standard incense that are sold as incense sticks, oils or cones that are 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, distributing or distribution means and covers the following activity: to offer for sale, distribute, furnish, gift, transfer, exchange or give, to any person and each transaction of those natures made by any person, whether as principal, proprietor, agent, servant or employee. 08/15/2012 ITEM #09 5

6 D. Person means any individual, corporation, business trust, estate, trust, partnership or association, or any other entity responsible for distributing psychoactive bath salts and psychoactive herbal incense. sale. E. Advertising means any printed material that calls the public s attention to things for F. Possession means having for use or sale in one s actual or constructive custody and/or control, and/or under one s authority or power, whether such custody, control, authority, and/or power be exercised solely or jointly with others Sales and Distribution Prohibited. A. It is unlawful for any person to sell, distribute, deliver, trade, barter, or give away any psychoactive bath salts or psychoactive herbal incense or similar substance within the City of Encinitas. B. It is unlawful for any person to offer for sale, distribution, delivery, trade or barter any psychoactive bath salts or psychoactive herbal incense or similar substance within the City of Encinitas. C. It is unlawful for any person to advertise or display psychoactive bath salts or psychoactive incense or similar substance within the City of Encinitas. D. It is unlawful for any person to claim or represent that a product or substance is a psychoactive bath salts or psychoactive incense or similar substance within the City of Encinitas Possession Prohibited. It is unlawful for any person to possess any psychoactive bath salts or psychoactive incense or similar substance within the City of Encinitas Exemptions. A. Exemption for authorized agents of the City. It is not an offense under this Chapter if any person acting at the direction of an authorized agent of the City of Encinitas or of the local law enforcement agency or allied law enforcement agency enforces or ensures compliance with this Chapter. B. Exemption for approval by FDA or California Law This Chapter shall not apply to drugs or substances lawfully prescribed or to intoxicating chemical compounds which have been approved by the Federal Food and Drug Administration or which are specifically permitted by California law. 08/15/2012 ITEM #09 6

7 Confiscation and Destruction. If any psychoactive bath salts or psychoactive incense or similar substance found in the possession of any person or entity, they may be confiscated and destroyed by the local law enforcement authority or appropriate agency acting on behalf of the City Nuisance And Injunction. A. It shall constitute a nuisance for any location, property or structure to contain, maintain, possess, or store any psychoactive bath salts or psychoactive incense or similar substances in the City of Encinitas. The City of Encinitas shall have the authority to secure an injunction to compel compliance with this Chapter from any individual or entity which fails to or refuses to comply with the same. B. It shall constitute a nuisance for any person to allow the distribution of psychoactive bath salts or psychoactive herbal incense or similar substance on property owned, controlled or managed by such person within the City of Encinitas. C. Disclaiming psychoactive bath salts or psychoactive herbal incense or similar substances as, Not safe for human consumption shall not avoid the application of this Chapter Enforcement. A. Violation of any provision of this Chapter or failure to comply with any requirement of this Chapter shall be punishable in accordance with the Encinitas Municipal Code. At the discretion of the prosecutor, a violation of this Chapter may be charged as a misdemeanor. B. Civil action. In addition to any other remedies provided in this Chapter, any violation of this Chapter may be enforced by civil action brought by the City pursuant laws of the State of California and the Encinitas Municipal Code. C. Administrative Citation. Any violation of this Chapter may be enforced by administrative citation and action brought by the City pursuant to the Encinitas Municipal Code, including civil fines not exceeding one thousand dollars ($1,000) per offense and per occurrence Severability. This Chapter and the various parts thereof are hereby declared to be severable. Should any section of part of this Chapter be declared by the courts to be unconstitutional, void or invalid, such decision shall not affect the validity of the Chapter as a whole, or any portion thereof other than the part or section declared to be unconstitutional, void or invalid. 08/15/2012 ITEM #09 7

CITY OF ENCINITAS CITY COUNCIL AGENDA REPORT Meeting Date: September 12, 2012

CITY OF ENCINITAS CITY COUNCIL AGENDA REPORT Meeting Date: September 12, 2012 TO: Mayor and City Council Members VIA: Gus Vina, City Manager l: t1l FROM: Kathy Hollywood, City Clerk SUBJECT: Adoption of