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HomeMy WebLinkAboutOrdinance No. 19552ORDINANCE NO. 19552 AN ORDINANCE ESTABLISHING REGULATIONS FOR ITEMS MARKETED FOR USE WITH CONTROLLED SUBSTANCES REQUIRING LICENSES; AMENDING SECTION 3,005 OF THE EUGENE CODE, 1971; ADDING SECTIONS 3.300, 3.302, 3.304, 3.306, 3.308, 3.310, 3.312, AND 3.314 TO THAT CODE; AND DECLARING AN EMERGENCY. The City Council of the City of Eugene finds that: Certain items that are designated, used, and intended for use with con- trolled substances have been retailed within the City of Eugene, Lane County, Oregon. It is in the best interest of the health, safety and welfare of the City of Eugene to regulate the sale of such items within the City. NOW, THEREFORE, THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS: Section 1. Section 3.005 of the Eugene Code, 1911, is amended by adding the following caption and definitions thereto immediately following those set forth therein for "Detective and Security Agency": 3.005 Definitions, For the purposes of this chapter, the following words and phrases shall mean: Drub Paraphernalia Controlled substance. Any drug or chemical substance the manufacture, possession ar use of which is made unlawful by ORS Chapter 415 ar federal law. The term includes marijuana as defined in ORS 415.DO5. Drub a~araphernalia. Any equipment, products and materials of any kind used, designed far use, intended for use, or marketed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, pre- paring, test~ng,'anaiyz~ng, packaging, repackaging, storing, con- ta~n~ng, concealing, in~ect~ng, ~ngest~ng, ~nhal~ng, or otherwise introducing into the human body a controlled substance. The term includes, but is not limited to: ~a~ Kits used or intended for use in planting, propagat- ing, cultivating, growing or harvesting any species of plant Ordinance - 1 that is an illegal drug or from which an illegal drug can be derived; fib} fits used or intended for use in manufacturing, com- paunding, converting, producing, processing, planting, culti- vat~ng, harvesting, or preparing a controlled substance; ~c} Isomerization devices used or intended for use in increasing the potency of any species of plant that is a con- trolled substance; ~d} Testing equipment used or intended for use in iden- tifying or in analyzing the strength, effectiveness, potency or purity of a controlled substance; fie} Scales or balances used or intended for use in weighing or measuring a controlled substance; ~f} Diluents and adulterants, such as quinine, hydro- ch]or~de, mann~tol, marmite, dextrose and lactose, used or intended for use ~n cutting a controlled substance; fig} Separation gins and sifters used or intended for use in removing twigs and seeds from, or otherwise cleaning or refining marijuana; ~h} Blenders, bawls, containers, spoons and mixing devices used or intended for use in compounding a controlled substance; ~i} Capsu]es, balloons, envelopes and other containers used or intended far use in packaging small quantities of a controlled substance; ~j} Containers and other objects used or intended for use in storing or concealing a controlled substance; ~k} Hypodermic needles, syringes and other objects used or intended for use ~n parenterally injecting a controlled substance into the human body; ~1} Objects used or intended for use in ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human bady, such as: metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or with- out screens, permanent screens, hashish heads, or punctured metal bowls; water pipes, carburetion tubes and devices; smoking and carburetion masks, ranch clips objects used to hold burning material, such as a marijuana cigarette, that is too small or too short to be held in the hand}; miniature cocaine spoons and cocaine vials; chamber, carburetor, elec- tric, or air-driven pipes; chillums; bongs; and ice pipes or chillers; and gym} fighting equipment specifically designed far the growing of controlled substances, Manufacture, The production, preparation, propagation, com- pounding, conversion or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and in- cludes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not in- clude the preparation or compounding of a controlled substance: ~a} By a practitioner as an incident to administering Ordinance - 2 or dispensing of a controlled substance in the course of pro- fess~onal practice; or fib} By a practitioner, or by an authorized agent under the practitioner's supervision, for the purpose af, or as an incident to, research, teaching or chemical analysis and not far sale. Person. Any individual, corporation, partnership, joint ven- ture, association or other business entity. To sell. To sell, to exchange, to contract to sell, to rent or lend for value, to Offer far sale or exchange, or to give away free as a prize or bonus incident to a business promotion. Section 2. The following caption and Sections 3.300, 3.302, 3.304, 3.306, 3.308, 3.310, 3.312, and 3.314 are added t0 the Eugene Code, 1971, to read and provide: Drug Paraphernalia 3.300 Dru Para hernalia - Determination of A licabilit . The following factors shall be considered in determining whether or not an object is drug paraphernalia in addition to all other logically relevant factors: ~a} Statements by an owner or by anyone in control of the ob- ject concerning its use; fib} 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; ~c}, The.praximity of the object, in time and space, t0 a direct vialat~on of ORS 415.992, 475.9931}fie} or 415.995; ~d} The proximity of the object to controlled substances; fie} The existence of any residue of controlled substances on the object; ~f} Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the Object, to deliver the object to persons who the Owner knows, yr shvuld reasonably know, intend to use the object to facilitate a violation of sections 3.300 to 3.310 of this code; the innocence of an owner, or of anyone in con- trol of the object, as to a direct violation of ORS 415.992, 475.9931}fie} or 415.995 shvuld not prevent a finding that the ob- 3ect ~s intended for use, or designed for use as drug paraphernalia; fig} Instructions, oral or written, provided with the object concerning its use; ~h} Descriptive materials accompanying the abject which ex- pla~n or depict its use; ~i} National and local advertising concerning its use; ~j} The manner in which the object is displayed fvr sale; ~k} whether the owner, or anyone in control of the object, is a legitimate supplier of like ar related items to the community, such as a distributor or dealer of tobacco products; Ordinance - 3 ~1} Direct or circumstantial evidence of the ratio of sales of the object ar objects to the total sales of the business enter- prise; gym} The existence and scope of legitimate uses for the object in the community; and fin} Expert testimony concerning its use. 3.302 Dru Para hernalia - License Re uired. . ~1} No person shall sell drug paraphernalia within the corporate l~m~ts of the city without first obtaining a drug paraphernalia sales license. The license required by this section shall be in addition to any other license required by law. ~2} No person under eighteen X18} years of age may obtain a drug paraphernalia sales license, nor shall any such person be employed by a licensee to sell drug paraphernalia. 3.304 Dru Para hernalia - A lication. ~1} An application for a drug paraphernalia sales license shall contain the applicant's name, business name and address, and the name of each and every employee, and be accompanied by affidavits by the applicant and each and every employee of the applicant who would be authorized to sell any stern of drug paraphernalia that the person has never been convicted of a drug- or controlled substance-related offense. This requirement shall not apply to persons convicted only of unlawful possession of less than one ounce of mar~~uana. ~2} Except as specifically provided herein, the farm of the appli- cat~on and the procedure for issuance, denial and revocation of a drug para- phernalia sales license shall be governed by sections 3.011 to 3.075 of this code. ~3} The licensee shall insure that all information required in the application remains current, and shall within five days of employment submit the aff~dav~ts required by section ~1} above for any person employed by the licensee to sell drug paraphernalia, after issuance of the license. 3.306 Dru Para hernalia - Records. Each licensee under section 3.302 of this code shall keep a written record in type or ink of all drug paraphernalia that is sold by the licensee or held in inventory. The licen- see shall hold these records open to the inspection of any city police officer during the hours that the licensee is conducting business. With respect to each sale of drug paraphernalia, the record shall contain the true name and current address of the purchaser, an accurate description and quan- tity of the product sold, the date of the sale, and the signature of the licensee or the 1~censee's agent. The licensee shall maintain these records in an orderly manner at the licensee's place of business for not less than two years. 3.308 Dru, Paraphernalia - Prohibitions. 1 } No person sha~~lw mai nta~~~n~~ ~or operate any pi ace of business i n which drug paraphernalia is kept, displayed, offered in any manner, sold, ordinance - 4 furnished, transferrred, or given away unless such drug paraphernalia are completely and wholly kept, displayed or offered within a separate roam or enclosure to which persons under the age of 18 are excluded. Each entrance to such a room or enclosure shall be clearly posted in reasonably visible and legible words to the effect that drug paraphernalia are kept, displayed or offered ~n such room and that minors are excluded. ~2} Nv business, owner, licensee or proprietor shall permit any person under the age of 18 years to enter, remain or visit a room or enclo- sure described in subsection ~1} which contains drug paraphernalia. ~3} No permit for a drug paraphernal i a sales 1 i cense shal 1 be issued until such time as the applicant has complied with the provisions of subsection ~1}. 3.310 Dru Para hernal i a - Re ul at i ons . The 1 i censee shal 1 campl y with all applicable federal, state and local laws and regulations. Con- viction of the licensee far any drug- or controlled substance-related offense, except possession of less than one ounce of marijuana, shall be grounds far revocation of the license. 3.312 Dru Para hernalia - Exem t Persons. The provisions of sections 3.300 to 3.314 of this Cade do not apply to any of the following: ~a} A pharmacist or other licensed health care provider who sells or furnishes drug paraphernalia as defined in section 3.005 of this code upon the prescription of a physician, dentist, podi~ atr~st yr veter~nar~an; ar fib} A physician, dentist, podiatrist, yr veterinarian who furnishes or prescribes drug paraphernalia as defined in section 3.305 of this code to his or her patients. 3.314 Civil Forfeiture. ~1} A willful violation of any of the provisions of sections 3.300 to 3.310 of this code by any person may, upon a determination of the viola- tion, result in the seizure and civil forfeiture of all drug paraphernalia possessed and/or offered for sale by such person within the city in accordance with the procedures set forth herein. 42} A willful violation of sections 3.300 to 3.310 of this code shall mean a second violation, committed on separate days, of any of the re- quirements stated herein within any two year period. ~3} Upon conviction Of a person far the second separate violation as set forth above, the city may institute a forfeiture proceeding in rem to obtain a 3udgment of forfeiture against all drug paraphernalia possessed and/or offered for sale by such person within the City. ~4} Any property subject to forfeiture to the city under this sec- tion may be seized by any peace officer on behalf of the city without issues once of process only when: ~a} The seizure is incident to a search under a search warrant ar an inspection under an administrative search warrant. fib} The property subject to seizure has been the subject of a prior judgment in favor of the city in a forfeiture proceeding under this code. Ordinance - 5 If property has been seized pursuant to paragraph ~a} or fib} above, within 30 calendar days of the seizure, in the name of the city, the city attorney may file a complaint and initiate an application fora temporary restraining order restraining the return of the seized property to any person claiming an interest ~n ~t. Forfeiture proceedings shall not be initiated against prop- erty that was seized after the 30-day period described above has expired. ~5} The proceedings for the forfeiture of the property shall be ~n accordance with the Oregon Rules of C~v~l Procedure and any person claim- ing an ownership interest in the property may file an answer and have the right to a jury trial. The burden of proof is on the city by a preponder- ance of the evidence. No drug paraphernalia shall be forfeited under sec- tions 3.300 to 3.310 tv the extent of the interest of any owner or holder of a security interest who did not consent to or was not aware of the use of the property. .~6} Upvn the certificate of the Municipal Court Judge that their preservation ~s necessary to the proper ends of justice, the chief of police shall preserve any drug paraphernalia forfeited to the city until the neces- sity ceases tv exist. In the absence of such necessity or when the necessity ceases, the chief of police or his or her designee shall destroy any drug parapherna1~a forfeited to the city. Section 3. That the matters contained herein concern the public health, welfare and safety and therefore, an emergency is hereby declared to exist, and this Ordinance shall become effective immediately upon its passage by the City Council and approval by the Mayor. Passed by the City Council this 9th day of May, 19$8 .~ ~ City Recorder Ordinance - 6 Approved by the Mayor this