(A) Nonprescription pseudoephedrine products, shall only be available for retail sale at retail establishments with the assistance of a state licensed pharmacist, or permitted pharmacy technician. The pharmacist, or pharmacy technician, or other employee of a retail establishment shall keep all pseudoephedrine products, as defined, behind a store counter or otherwise in a manner that is inaccessible to customers without the assistance of a pharmacist or pharmacy technician licensed in this state per A.R.S. Title 32, Chapter 18.
(B) Any pseudoephedrine product found to be displayed in a retail establishment in violation of this article constitutes a public nuisance and is subject to seizure and disposal by the city.
(C) Products subject to seizure under this article may be seized by a peace officer pursuant to a search or seizure warrant or upon probable cause to believe that the products are subject to seizure. Before removing any products from the establishment, the peace officer shall give the operator of the establishment a reasonable opportunity to secure the products pursuant to this article, unless the operator has already been afforded an opportunity within the preceding consecutive 12-month period to secure such products.
(D) At the time of seizing any products under this section, the peace officer shall deliver a notice of intent to dispose of the seized products. This notice shall include the date and location of the seizure, an inventory of the items seized, a description of how a post-seizure hearing may be requested, the time limit for requesting that hearing, and a warning that failure to request the hearing in a timely manner will result in the disposal and destruction of the seized property. The notice required under this division shall be served on the managing agent, licensed pharmacist or pharmacy technician of the retail establishment present at the time of the seizure, or if that person cannot be identified at the time of the seizure, on any employee of the establishment.
(E) A person receiving a notice of intent to dispose under this section may request a post-seizure hearing with the Apache Junction Municipal Court to determine the validity of the seizure within 15 days of receiving the notice, excluding weekends and holidays. The court shall conduct the hearing within 10 days of the court's receipt of the request, excluding weekends and holidays. Failure to request the hearing in a timely manner, or failure to attend a scheduled hearing, constitutes a waiver of the right to challenge the validity of the seizure. At the hearing, the city shall have the burden of establishing by a preponderance of the evidence that the property was subject to seizure pursuant to this article. At the hearing, the court may admit any reliable and relevant evidence. If the court finds that the products were not subject to seizure, it shall order the immediate return of all seized items. If the court finds that the products were properly seized pursuant to this section, the court shall order that the products be forfeited to the city, and shall direct the city to destroy and dispose of the products.
(F) The requirements of this section are in addition to any requirements under state and federal law.
(Am. Ord. 1253, passed 1-3-2006)