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Item 6HCITY OF SOUTH LAKE MEMORANDUM December 9, 2010 TO: Shana Yelverton, City Manager FROM: Robert Finn, Chief of Police SUBJECT: Ordinance No. 993, 2nd Reading, Amend Chapter 11, Offenses and Miscellaneous Provisions of the City Code of Ordinances, as amended, by adding Article V, prohibiting the possession, purchase, sale and ingestion of certain drugs. Action Requested: Consider adopting Ordinance 993 to amend Chapter 11, Offenses and Miscellaneous Provisions of the City Code of Ordinances by adding Article V, prohibiting the possession, purchase, sale, and ingestion of certain drugs. Background Information: The City of Southlake has consistently responded pro- actively to matters involving the protection of human health and welfare. Well recognized medical professionals and law enforcement officials have become aware of the growing presence of a new and potentially dangerous substance affecting the public health, safety and welfare of the citizens, particularly the youth of the City. This substance is synthetic cannabis which is presented in the form of retail products sold or distributed as a mixture of dried vegetation that when covered or mixed with certain specific chemicals, produces the physiological and psychological effects of a controlled substance such as marijuana. These substances are reported to cause hallucinations, vomiting, agitation, panic attacks, tachycardia, elevated blood pressure, pallor, numbness and tingling, disorientation, loss of time awareness and, in some cases, tremors and seizures as documented by the National Drug Intelligence Center of the United States Department of Justice in EWS Report 000006 issued May 18, 2010. There is also clear medical evidence and treatment response and documentation of these symptoms and events which have been confirmed by Doctor Anthony J. Scalzo, the Medical Director of the State of Missouri Poison Control Center in a special 4H -1 Shana Yelverton Ordinance 993 Page 2 of 10 newsletter alert to the medical community generated as Volume 4, Issue 1, 2010. The substances identified above are distributed, sold and marketed under such names as "K -2 ", "K -2 SUMMIT ", "K- 2 SEX ", "K -3" "GENIE ", "DASCENTS ", "ZOHAI ", "SAGE ", "SPICE ", "KO KNOCK -OUT 2 ", "SPICE GOLD ", "SPICE DIAMOND ", "YUCATAN FIRE ", "SOLAR FLARE ", "PEP SPICE ", "FIRE N' ICE ", AND "SALVIA DIVINORUM ". These substances have not yet been designated as controlled substances under the laws of the State of Texas or under the laws of the United States. Currently pre -bills have been filed in the Texas Legislature; the passage of this Ordinance will also provide local support for banning these substances statewide. The bills are H.B. 49 and H.B. 108. The proposed Ordinance will make it unlawful to use, possess, purchase, sell, gift, barter, publically display for sale, or attempt to sell, gift or barter a prohibited smoking material within the city limits of the City of Southlake with a fine of not more than Five Hundred Dollars ($500.00) imposed for each offense. The proposed Ordinance also has the following defenses defined: • If the use of the prohibited smoking material is at the direction or under a prescription issued by a licensed physician or dentist authorized to prescribe controlled substances within the State of Texas. • If an individual charged with a violation can provide proper and complete historic documentation that the use of such materials is a portion of a religious undertaking or activity of a religious denomination in which they have long standing historic membership supported by documentation from clergy or spiritual leader recognized by the State of Texas. 4H -2 Shana Yelverton Ordinance 993 Page 3 of 10 Financial Considerations: None Financial Impact: None Citizen Input/ Board Review: This Ordinance is supported by Carroll ISD Administrators, SPARK, and local Legislators. Council approved 7 -0 on consent during the December 7, 2010 City Council meeting. Legal Review: The City Attorney reviewed and drafted the proposed amendments to the Code of Ordinances. Alternatives: Alternatives may include the following: • The City Council can adopt the proposed Ordinance. • The City Council can choose not to adopt the proposed Ordinance. • The City Council could amend and adopt an amended version of the proposed Ordinance. Supporting Documents: Supporting documents include the following items: • Ordinance 993 Staff Recommendation: Staff recommendation to City Council is to adopt Ordinance 993 to amend Chapter 11, Offenses and Miscellaneous Provisions of the City Code of Ordinances by adding Article V, prohibiting the possession, purchase, sale, and ingestion of certain drugs. 4H Shana Yelverton Ordinance 993 Page 4 of 10 ORDINANCE NO. 993 AN ORDINANCE AMENDING CHAPTER 11, OFFENSES AND MISCELLANEOUS PROVISIONS, OF THE CITY CODE OF ORDINANCES OF THE CITY OF SOUTHLAKE, TEXAS, AS AMENDED, BY ADDING ARTICLE V, PROHIBITING THE POSSESSION, PURCHASE, SALE AND INGESTION OF CERTAIN DRUGS; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A PENALTY FOR VIOLATIONS HEREOF; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION IN THE OFFICIAL NEWSPAPER; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Southlake is a home rule city acting under its charter adopted by the electorate pursuant to Article XI, Section 5, of the Texas Constitution and Chapter 9 of the Local Government Code; and WHEREAS, the City Council of the City of Southlake has been provided with documentation from competent, well recognized medical professionals and law enforcement officials of the growing presence of a new and potentially dangerous substance affecting the public health, safety and welfare of the citizens, particularly the youth of the City; and WHEREAS, in response to these warnings, the City Council has secured information indicating that this threat is presented in the form of retail products sold or distributed as a mixture of dried vegetation that when covered or mixed with certain specific chemicals, produces the physiological and psychological effects of a controlled substance such as marijuana; and WHEREAS, such substances are competently reported to cause hallucinations, vomiting, agitation, panic attacks, tachycardia, elevated blood pressure, pallor, numbness and tingling, disorientation, loss of time awareness and, in some cases, tremors and seizures as documented by the National Drug Intelligence Center of the United States Department of Justice in EWS Report 000006 issued May 18, 2010; and WHEREAS, the medical evidence and treatment response and documentation of these symptoms and events have been confirmed by Doctor Anthony J. Scalzo, the Medical Director of the State of Missouri Poison Control Center in a special newsletter alert to the medical community generated as Volume 4, Issue 1, 2010; and 4H -4 Shana Yelverton Ordinance 993 Page 5 of 10 WHEREAS, the substances identified above are considered to be generally described as synthetic cannabinoids or salvia divinorum distributed, sold and marketed under such names as "K -2 ", "K -2 SUMMIT ", "K -2 SEX ", "K -3" "GENIE ", "DASCENTS ", "ZOHAI ", "SAGE ", "SPICE ", "KO KNOCK -OUT 2 ", "SPICE GOLD ", "SPICE DIAMOND ", "YUCATAN FIRE ", "SOLAR FLARE ", "PEP SPICE ", "FIRE N' ICE ", AND "SALVIA DIVINORUM ", and WHEREAS, the substances identified above have not yet been designated as controlled substances under the laws of the State of Texas or under the laws of the United States; and WHEREAS, the substances described above may be marketed as incense but are commonly being used as an alternative to marijuana which is an identified and documented controlled substance, the sale and use of which is prohibited under the laws of the State of Texas and the United States; and WHEREAS, the synthetic cannabinoids substances identified above may be presented under a variety of street names but share common ingredients including JWH -018 and JWH -073; and WHEREAS, salvia divinorum contains the ingredient known as Salvinorin A; and WHEREAS, these unregulated synthetic cannabinoids and salvia divinorum produce a very potent, intoxicating effect which is estimated by the medical community to produce effects ranging from three to one hundred times greater and more potent than THC, the active ingredient in marijuana; and WHEREAS, the substances identified above manifest all of the demonstrated attributes of substances that deprive individuals of judgment, coordination and the ability to conduct themselves in a safe and appropriate manner in modern society; and WHEREAS, the available medical and law enforcement information on these products indicates that individuals under the effects of these substances may be a clear and present danger to themselves and others; and WHEREAS, it is anticipated that the Texas Legislature will consider appropriate regulation of these type of commodities in its upcoming legislative session but that it is essential for the municipality to prohibit these products until a state wide regulatory system may be properly implemented; and WHEREAS, the risk posed by these substances creates a danger to the public health and safety that must be immediately addressed by the adoption of a local ordinance to protect the interests of the citizens of the City; 4H -5 Shana Yelverton Ordinance 993 Page 6 of 10 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE, TEXAS: SECTION 1. Chapter 11 of the City Code of Ordinances of the City of Southlake is amended by adding Article V, Sections 11 -90 through 11 -92, to read as follows: ARTICLE V. PROHIBITION OF CERTAIN DRUGS Sec. 11-90. Definitions For purposes of this Article. Prohibited Smoking Material Means any substance, however marketed, which can reasonably be converted for smoking purposes whether it is presented as incense, tobacco, herbs, spices or any blend thereof if it includes any of the following chemicals or a comparable chemical: A. Salvia divinorum or salvinorin A; all parts of the plant presently classified botanically as salvia divinorum, whether growing or not, the seeds thereof, any extract from any part of such plant, and every compound, manufacture, salts, derivative, mixture or preparation of such plant, its seeds or extracts; B. 2 -[(1 R,3S)- 3- hydroxycycl ohexyl] -5 -(2- methyloctan- 2- yl)phenol (also known as CP47,497) and homologues; C. 6aS,10aS) -9 -( hydroxymethyl ) -6,6- dimethyl -3 -(2- methyloctan -2- A - 6a, 7, 10, 10a- tetrahydrobenzo[c]chromen -1 -ol) (also known as HU -210 or HU -211 or Dexanabinol); or K2); 081); or D. 1- pentyl- 3- (1- naphthoyl)indole (also known as JWH -018, Spice E. 1- butyl- 3- (1- naphthoyl)indole (also known as JWH -073); or F. 1- pentyl- 3- (4- methoxynaphthoyl)indole (also known as JWH- G. N- benzylpiperazine commonly known as BZP; 4H - Shana Yelverton Ordinance 993 Page 7 of 10 TFMPP; H. 1 -(3- [trifluoromethylphenyl]) piperazine commonly known as Any other synthetic cannabinoid; or J. Any similar substance which when inhaled or otherwise ingested produces intoxication, stupefaction, giddiness, paralysis, irrational behavior, or in any manner, changes distorts or disturbs the auditory, visual, or mental process and the product or substance had no other apparent legitimate purpose for consumers. Sec. 11-91. Possession, Purchase, Sale or Ingestion of Prohibited Smoking Material It shall be unlawful to use, possess, purchase, sell, gift, barter, publically display for sale, or attempt to sell, gift or barter a Prohibited Smoking Material within the city limits of the City of Southlake. Sec. 11.92. Defenses to Prosecution (a) It shall be a defense to prosecution for a violation of section 11.91 if the use of the prohibited smoking material is at the direction or under a prescription issued by a licensed physician or dentist authorized to prescribe controlled substances within the State of Texas. (b) It shall be a defense to prosecution for a violation of section 11.91 if an individual charged with a violation can provide proper and complete historic documentation that the use of such materials is a portion of a religious undertaking or activity of a religious denomination in which they have long standing historic membership supported by documentation from clergy or spiritual leader recognized by the State of Texas. Secs. 11- 93- 11 -99. Reserved. SECTION 2. This ordinance shall be cumulative of all provisions of ordinances and of the City Code of Ordinances, City of Southlake, as amended, except where the provisions are in direct conflict with the provisions of other ordinances, in which event the conflicting provisions of the other ordinances are hereby repealed. 4H -7 Shana Yelverton Ordinance 993 Page 8 of 10 SECTION 3. It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs and sections of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 4. Any person, firm or corporation who violates, disobeys, omits, neglects, refuses or fails to comply with, or who resists the enforcement of any provision of this ordinance shall be fined not more than Five Hundred Dollars ($500.00) for each offense. Each day that a violation is permitted to exist shall constitute a separate offense. SECTION 5. All rights and remedies of the City of Southlake are expressly saved as to any and all violations of the provisions of the City Code of Ordinances, City of Southlake, or any other ordinances prohibiting the possession, purchase, sale and ingestion of Prohibited Smoking Material which have accrued at the time of the effective date of this ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such ordinances, same shall not 4H -s Shana Yelverton Ordinance 993 Page 9 of 10 be affected by this ordinance but may be prosecuted until final disposition by the court. SECTION 6. The City Secretary of the City of Southlake is hereby directed to publish caption, penalty clause, and effective date clause in the official newspaper at least once within ten (10) days after the passage of this ordinance. SECTION 7. This ordinance shall be in full force and effect ten (10) days from and after its passage as provided by law, and it is so ordained. PASSED AND APPROVED ON FIRST READING ON THIS DAY OF 2010 MAYOR ATTEST: CITY SECRETARY PASSED AND APPROVED ON SECOND READING ON THIS DAY OF , 2010. MAYOR ATTEST: 4H - Shana Yelverton Ordinance 993 Page 10 of 10 CITY SECRETARY EFFECTIVE: APPROVED AS TO FORM AND LEGALITY: CITY ATTORNEY 4H -lo