Sarasota County Designer Drug Ordinance

Transcription

1 Sarasota County Designer Drug Ordinance Community Endorsement Presentation A Staff Report to the Board of County Commissioners

2 Recommended Motions To authorize advertisement of a public hearing to consider a proposed Ordinance No XXX, creating Article XIII of Chapter 62 of the County Code, relating to Designer Drugs and to waive the requirement for an Economic Impact Statement (EIS).

3 Designer Drugs

4 The Problem Designer Drug use is on the rise Sarasota County Nationally 2012 Florida Youth Substance Abuse Survey regarding use of synthetic marijuana 21.7% of Sarasota County H.S. students 13% of Florida H.S. students

5 The Problem, cont d Hospitals are seeing increased medical emergencies. Law enforcement is seeing increased criminal behavior frequently violent.

6 As close as your neighborhood store!

7 The Problem, cont d Who do you think the customer is? Who s the pitch designed to reach?

8 What are Designer Drugs? Three Primary Families 1. Synthetic Cannabinoids 2. Synthetic or Substitute Cathinones 3. Kratom

9 Synthetic Cannabinoids Popularly recognized as K2 or Spice Herbs are sprayed with chemical compounds similar to those used to make PCP and Methamphetamine

10 Synthetic or Substitute Cathinones Commonly referred to as bath salts Emerging family of drugs containing an amphetamine-like stimulant Effects are similar to meth, ecstasy, or cocaine

11 Synthetic Cathinones, cont d The Drug Abuse Warning Network (DAWN) Report shows that Bath Salts were involved in nearly 23,000 emergency department visits nation-wide in 2011 (Substance Abuse and Mental Health Services Administration 2013)

12 Kratom A natural, herbal psychotropic stimulant and opioid substitute Highly addictive with symptoms ranging from dry mouth to hallucinations

13 Highly Addictive Kratom on the Rise

14 Kratom, cont d Banned by the U.S. Army and Navy Not currently scheduled under the Controlled Substances Act Indigenous to Thailand, Malaysia, and Myanmar, its use is controlled or illegal

15 Kratom in Sarasota Snapshot of a website:

16 Local Solution Criminal Justice Commission requests BCC to enact an ordinance regulating Designer Drugs BCC directed the Sheriff s Office, the County Attorney, and Human Services to develop an ordinance

17 Local Solution, cont d Early attempts to outlaw designer drugs were based on chemistry and pharmacology Our approach is to focus on distribution and marketing

18 Local Solution, cont d Factors to be considered in enforcement: Product name Packaging Appearance and quantity resemble a controlled substance Non-identification of active ingredients Product placement for distribution

19 Local Solution, cont d Enforcement Carried out by the Sheriff s Office or Municipal Police Focuses on flexibility and tools used for enforcement Prosecuted as a second-degree misdemeanor Citations filed with the County Court

20 Local Solution, cont d Penalties include fines of $250 per package Revocation of a business certificate of occupancy Provides for a cause of action for a citizen to enforce the code as a private attorney general

21 Staff Recommended Motions To authorize advertisement of a public hearing to consider a proposed Ordinance No XXX, creating Article XIII of Chapter 62 of the County Code, relating to Designer Drugs and to waive the requirement for an Economic Impact Statement (EIS).

22 SARASOTA COUNTY GOVERNMENT HEALTH AND HUMAN SERVICES TO: THROUGH: FROM: Sarasota County Commission Thomas A. Harmer, Interim County Administrator Charles H. Henry, Director, Health and Human Services Mel Thomas, Human Services Planner DATE: December 11, 2013 SUBJECT: To authorize advertisement of a public hearing to consider a proposed Ordinance No XXX, creating Article XIII of Chapter 62 of the County Code, relating to Designer Drugs and to waive the requirement for an Economic Impact Statement (EIS). RECOMMENDED MOTION(S) OR ACTION(S): To authorize advertisement of a public hearing to consider a proposed Ordinance No XXX, creating Article XIII of Chapter 62 of the County Code, relating to Designer Drugs and to waive the requirement for an Economic Impact Statement (EIS). BACKGROUND: On August 26, 2013, the Criminal Justice Commission identified a pressing community issue the abuse of synthetic drugs, hereinafter termed designer drugs, both nationally and in Sarasota County. The term designer drug encompasses all forms of synthetic cannabis, synthetic cathinones, Kratom, and their derivatives, variations, and substitutes. Often, human consumption of these new designer drugs causes extreme and detrimental effects. On August 28, 2013, the Board of County Commissioners considered the request from the Criminal Justice Commission to enact an ordinance regulating designer drugs. The Board agreed and directed the County Administrator and County Attorney to draft the ordinance. The County Administrator assigned Human Services to collaborate with the County Attorney and Sheriff s Office to develop an ordinance. A work group consisting of staff from Sarasota County Health and Human Services, the County Attorney s Office, the Sheriff s Office, Code Enforcement, and the State Attorney s Office worked together during September and October to draft a comprehensive and effective ordinance to address the problem. The group investigated the scope, severity, and urgency of the problem of designer drugs. Research revealed that the approach of both the federal laws and the Florida statutes is ineffective. These laws focus on banning the specific substances according to their chemical make-up. Manufacturers avoid these bans through perpetual alterations in the chemical composition of the drug. The work group then considered local laws adopted in Pasco County, Broward County, Hillsborough County, and several municipalities to come up with a solution to this problem. Like these other local governments, the draft ordinance focuses on the distribution and marketing of designer drugs, and not their chemical make-up. The group developed an ordinance that borrows language and concepts from well-known consumer protection legislation, the federal Fair Packaging and Labeling Act. Specifically, the ordinance prohibits misbranding, false advertising, failure to list ingredients, and other misleading packaging. By incorporating these federal laws into the local ordinance, it allows our local enforcement officials to act rather than solely referring violations to an overburdened federal agency. Additionally, the draft ordinance creates factors for a judge, jury, or Code Enforcement Special Magistrate to consider in determining whether a particular substance is a designer drug. For example, the appearance of the substance, the packaging, how it is sold, etc.

23 RELEVANT PRIOR BOARD ACTION: August 28, Board directed the County Administrator and the County Attorney to work with the Sheriff to draft a proposed ordinance relating to synthetic substances. ANALYSIS: In the past year, Sarasota County, like most areas in the nation, has experienced an increase in the number of medical emergencies and criminal behavior some of it violent attributable to designer drugs. The fact that these drug are cheap, readily available, and for the time being wrongly perceived to be safe, expands the scope of the problem. These drugs are literally as close and easy to get as the neighborhood convenience store. There are no legitimate non-research uses for designer drugs, and they have not been approved by the U.S. Food and Drug Administration (FDA) for human consumption. The Federal Analog Act bans substances that are substantially similar in structure and pharmacological effect to controlled substances. However, the substance must be intended for human consumption. Manufacturers, therefore, use a disclaimer that the product is not for human consumption or for fragrant purposes only to avoid the prohibitions under the Federal Analog Act. Instead, the products are labeled as incense, bath salts, plant food, or other substance, or have no identification as to what type of commodity might be inside the package, to avoid such regulation. In addition, the packaging of designer drugs is particularly appealing to youth, who may not know how potentially dangerous such products are to their health. Despite the best efforts of federal and state legislators to outlaw designer drugs, chemists reconfigured the banned substances to produce new synthetic drugs. By altering the molecular structure of the chemicals used in the products, the manufacturers, distributors, and retailers avoid regulation. The three primary families of designer drugs are: synthetic cannabinoids, synthetic or substitute cathinones, and Kratom. A. Synthetic Cannabinoids Synthetic marijuana, known as K2 or Spice, is a mixture of chemicals sprayed on herb mixtures to imitate the high of marijuana. However, it is actually contaminated with multiple unknown toxic substances in unknown quantities. The synthetic compounds are dissolved in various harsh chemicals such as acetone, phosphoric acid, formaldehyde, and toluene. These chemicals are similar to the compounds used to make PCP and Methamphetamine. Synthetic Cannabis is still wrongly perceived as a safe alternative to marijuana, in part because it is advertised as a natural mixture of legal herbs. The packaging fails to disclose the active ingredients, which are often harmful to those that consume synthetic cannabinoids. In addition, urine tests typically used to detect marijuana do not similarly detect synthetic cannabis as the main metabolites as the unchanged compounds are usually not found in urine after consumption. According to the 2012 Florida Youth Substance Abuse Survey, conducted by the Florida Department of Children and Families (FDCF) and the Executive Office of the Governor, 21.7% of Sarasota County high school students use synthetic marijuana compared to 13.0% of Florida high school students. And according to the FDCF, the use of Synthetic Cannabis among Florida 9 th graders increased 78% in the single year ; use among 11 th graders increased 48% in the same time. B. Synthetic Cathinones Synthetic Cathinones, commonly referred to as bath salts, are an emerging family of drugs containing one or more synthetic chemicals related to cathinone, an amphetamine-like central nervous system stimulant found naturally in

24 the Khat plant, producing pharmacological effects similar to those induced by methamphetamine, ecstasy, or cocaine. Substitute Cathinones are sold in various retail stores, tobacco shops, and head shops and over the internet. They are usually sold in powder, tablet, or capsule form, and can be inhaled, eaten, smoked, or put into solution and injected. According to a national study by the Substance Abuse and Mental Health Services Administration (SAMHSA), that was released September 18, 2013, there were nearly 23,000 emergency department visits for synthetic drugs, commonly known as bath salts. Further, 33% of the visits involved bath salts only, 15% involved bath salts combined with marijuana or synthetic marijuana, and 52% involved bath salts combined with other drugs. Substitute Cathinones do not produce positive test results in a typical drug urine screen. C. Kratom Kratom (Mitragyna speciosa korth) is an herbal psychotropic stimulant and opioid substitute. Due to its psychotropic and addictive nature, the U.S. Army and Navy banned use of Kratom and the Drug Enforcement Agency (DEA) has placed Kratom on the DEA Watch List. Kratom is not currently scheduled under the Controlled Substances Act, but is controlled in Thailand, Malaysia, and Myanmar, where it is indigenous. Kratom has been shown to be addictive, evidencing a clear set of effects and side effects, ranging from dry mouth, insomnia, and anorexia to hallucinations, delusion, and confusion, and a consistent withdrawal syndrome (including symptoms of limb spasticity, hostility, aggression, and emotional lability). Despite its dangers in use, Kratom is promoted as a legal psychoactive product. Specialized testing is required to detect Kratom in a urine analysis. Review of Potential Solutions: While both the federal government and the State of Florida have taken action to eliminate the manufacture, distribution, sale, possession, and use of designer drugs, their efforts have focused on the chemistry and pharmacology of the substances. Unfortunately, minor alterations of chemistry and pharmacology often yield new compounds that are often both legal and more powerful. To address the problem of perpetual alterations of the chemical composition of designer drugs, Section (2) of the Code lists factors for a trier-of-fact to consider as prima facie evidence that a substance is a designer drug. Section (1) does not require demonstration of any particular number of factors, but rather provides guidance to a judge or jury in deciding whether the facts and circumstances of the case demonstrate that a substance is a designer drug. These factors include a review of the packaging, name of the product, the appearance of the substance, quantity of the substance, etc. Recently, local jurisdictions among them, Pasco County in Florida have successfully fought designer drugs through new ordinances that include provisions for consumer protection. These ordinances focus on violations of product labeling and misbranding, product marketing and packaging, and product display and retailing. Section (4) of the Code creates packaging and labeling requirements for consumer commodities. This proposed ordinance uses similar language. For example, new ordinances in other jurisdictions prohibit distribution and sale at the retail outlet if: 1. The packaging of the substance indicates, suggests, or implies that a product mimics the pharmacological effects of any controlled substance or if the packaging of the substance claims that it is homeopathic, herbal, or natural substitute for a controlled substance. 2. The substance resembles a controlled substance in its appearance; the quantity of the substance indicates, suggests, or implies that the product is intended for human consumption; or if display of the substance near or alongside other products intended for human consumption indicates, suggests, or implies that the product is also intended for human consumption; or if the seller provides oral or written statements or representations concerning the substance that indicate the method, use, or effect of the product as part of human consumption.

25 3. There is a significant difference between the price at which the substance is sold and the price at which the substance is purported to be advertised (i.e., potpourri, plant food, eyeglass cleaner, bath salts, incense, etc.) is normally sold. 4. The packaging of the substance fails to list all active ingredients or compounds, falsely lists its active ingredients or compounds or fails to provide an identity or quantity of the commodity contained inside. 5. The packaging of the substance fails to identify the name and place of business of the manufacturer, packer, or distributor or contains false information about the name and place of business of the manufacturer, packer, or distributor. 6. The packaging is surreptitious or uses methods commonly associated with transport or sale of controlled substances such as tinfoil, plastic bags, balloons, etc.; if the substance is sold using a code word or password or is not kept in open display, but rather behind a counter or otherwise hidden from the ordinary view of the public; or if the substance is kept in close proximity to drug paraphernalia, as that term is defined in section , Florida Statutes, as may be amended from time to time. In all cases, evidence that a substance is a designer drug is predicated on a valid determination to that effect by a court, Code Enforcement Special Magistrate, or jury. An exemption and affirmative defense of bona fide use is included in Section (6) of the Code. This exemption and affirmative defense is designed to provide a defendant the opportunity to demonstrate that the substance in question is a legitimate and lawful consumer commodity. To this end, the jury considers the absence of indicia of the logically relevant factors outlined in Section (2), and evidence or argument that the substance is in compliance with federal and state drug, food safety, tobacco, and other laws. Thus, the draft ordinance proposed by the work group combines the best efforts of other local governments to develop an effective solution. Enforcement: The draft ordinance focuses on flexibility in the tools used for enforcement. The primary enforcement responsibilities will be carried out by the Sheriff s Office and local municipal police departments, unless their city commissions adopt an alternate ordinance. There is an option to use either criminal or civil enforcement. Criminal enforcement allows for the prosecution of violations of the ordinance as a second degree misdemeanor, consistent with general law. Other jurisdictions, including Pasco County and Hillsborough County, have used the mechanism of civil enforcement through the code enforcement process to fine convenience store owners for the violations. Section of the Code establishes that each separately packaged substance that contains a designer drug or misbranded consumer commodity will be counted as a separate offense, with the amount of the fine being $ per package. In Hillsborough County, the seizure of packages from a convenience store resulted in a fine of $1.2 million. That fine is currently being appealed. Additionally, enforcement may occur through the revocation of a business certificate of occupancy. Although the use of this remedy would likely be rare, it is an available option should multiple violations by the same business continue to be documented by a business. The draft ordinance also contains a provision unique and not seen in any other law or ordinance. Specifically, Section (11) of the Code declares designer drugs and misbranded consumer commodities to be a public nuisance and provides a cause of action for any person to enforce the Code as a private attorney general. This new language would allow a person to seek damages, including but not limited to damages for medical expenses and wrongful death, for injuries sustained resulting from a violation of the ordinance. The language provides for award of reasonable expenses and attorney s fees, similar to a violation of the public records law.

26 RECOMMENDATIONS: Staff recommends that the Board authorize advertisement of a public hearing to consider a proposed Ordinance No XXX, creating Article XIII of Chapter 62 of the County Code, relating to Designer Drugs and to waive the requirement for an Economic Impact Statement (EIS). FUNDING SOURCE: N/A Attachments: XXXX