(a) Findings of the Council.
(1) The public property and property owned by the City of Clarksburg, West Virginia, are places of gathering and commerce, where patrons, residents, and visitors conduct business, shop, sightsee, and recreate. Being in the heart of the City, these areas and establishments offer an array of services to support residents living nearby and those coming into the City to enjoy the urban core of the City, to include shopping, dining, art venues, courthouse services, and governmental services. Being adjacent to Washington Irving Middle School, these areas are also often frequented by students and parents in the process of drop-off/pick-up from the school. It is imperative that those engaging in or otherwise availing themselves of these areas and within the City of Clarksburg at large be safe and protected from activities that would otherwise be detrimental to the public good. Furthermore, West Virginia Code § 8-12-5(23) allows a municipality the power to provide for the elimination of hazards to public health and safety and to abate or cause to be abated anything which in the opinion of a majority of the City Council of the City of Clarksburg is a public nuisance.
(2) Therefore, being conscientious of its duty to protect and improve the welfare of the citizens of the City of Clarksburg and the public at large, the City Council for the City of Clarksburg finds it necessary, proper, and in furtherance of the public peace and good order that the sale, manufacturing, distribution, or elsewise furnishing of drug paraphernalia not specifically licensed or permitted be prohibited within the municipal boundaries of the City of Clarksburg.
(b) Prohibition of Illegal Drug Paraphernalia Businesses; Drug Paraphernalia Defined.
(1) A. It shall be unlawful for person or persons as principal, clerk, agent or servant to sell any items, effect, paraphernalia, accessory or thing which is designed or marketed for use with controlled substances, as defined in chapter sixty-A of this Code, without obtaining a license to therefor fmm the West Virginia state tax commissioner.
B. Notwithstanding the foregoing, nothing herein is intended to prohibit any lawful use of any equipment, product, or material held pursuant to a permit or license issued pursuant to the West Virginia Medical Cannabis Act.
(2) As used in this section, "paraphernalia" shall be defined as any legitimate equipment, product, or material that is used or modified to be used for making, using, or concealing illegal drugs such as cocaine, cocaine based derivative, heroin, marijuana, and methamphetamine and includes certain pipes, smoking masks, bongs, cocaine freebase kits, marijuana grow kits, roach clips, and items such as hollowed out cosmetic cases or fake pagers used to conceal illegal drugs and dealer-specific products used for preparing illegal drugs for distribution at the street level such as scales, vials, and baggies but is not limited to, the following:
A. Kits marketed for use, or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;
B. Kits marketed for use, or designed for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances;
C. Isomerization devices marketed for use, or designed for use in increasing the potency of any species of plant which is a controlled substance;
D. Testing equipment marketed for use, or designed for use in identifying, or in analyzing the strength, effectiveness or purity of controlled substances; Provided, that fentanyl test strips shall not be considered drug paraphernalia for the purpose stated in section one of this article;
E. Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;
F. Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, marketed for use, or designed for use in cutting controlled substances;
G. Separation gins and sifters marketed for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;
H. Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances;
I. Capsules, balloons, envelopes and other containers marketed for use, or designed for use in packaging small quantities of controlled substances;
J. Hypodermic syringes, needles and other objects marketed for use, or designed for use in parenterally injecting controlled substances into the human body;
K. Paper of colorful design, with names oriented for use with controlled dangerous substances and displayed: Provided, that white paper or tobacco oriented paper not necessarily designed for use with controlled substances is not covered;
L. Pipes displayed in the proximity of roach clips, or literature encouraging illegal use of controlled substances, are covered by this article:
M. Roach clips: meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand;
N. Miniature cocaine spoons, and cocaine vials;
O. Chillums or bongs;
P. Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls intended for smoking or using methamphetamines;
(3) Drug paraphernalia does not include any items traditionally used with tobacco such as pipes and rolling papers. The provisions of this section shall not apply to any person who owns or is engaged in breeding or raising livestock, poultry or other animals to which hypodermic injections are customarily given in the interest of health, safety, or good husbandry; or to hospitals, physicians, pharmacists, dentists, podiatrists, veterinarians, funeral directors and embalmers, persons to whom a permit or state or federal licensure has been issued, manufacturers, wholesalers or their authorized agents or employees when in the usual course of their business, if the controlled paraphernalia lawfully obtained continues to be used for the legitimate purposes for which they were obtained.
(c) Penalties and Enforcement.
(1) A place where drug paraphernalia is manufactured, sold, stored, possessed, given away or furnished in violation of this section shall be deemed a common or public nuisance. Conveyances or vehicles of any kind shall be deemed places within the meaning of this section and may be proceeded against wider the provisions of subsection (b) hereof. A person who shall maintain, or shall aid or abet or knowingly be associated with others in maintaining such common or public nuisance shall be punished by a fine of not less than ten dollars ($10.00) nor more than five hundred dollars ($500.00) for the first offense and succeeding offenses, and each day that such violation shall continue shall be deemed a separate and distinct offense and judgment shall be given that such nuisance be abated or closed a place for the manufacture, sale, storage, possession, giving away or furnishing drug paraphernalia as defined above.
(2) The City Attorney may maintain a suit in the name of the City of Clarksburg to abate and perpetually enjoin the same, consistent with the provisions of West Virginia Code 60A-4-403a.
(3) If there is a complaint an oath or affirmation supported by affidavit or affidavits setting forth the facts for such belief that drug devices are being manufactured, sold, kept, stored or in any manner held, used, or concealed in a particular house or other place with intent to engage in an illegal drug paraphernalia business in violation of law, the municipal judge to whom such complaint is made, if satisfied that there is probable cause for such belief, shall issue a warrant to search such house or other place for such devices. Such warrants, except as herein otherwise provided, shall be issued, directed, and executed in accordance with the laws of the State of West Virginia and the City of Clarksburg pertaining to search warrants.
(4) An officer charged with the execution of a warrant issued under this section may, whenever is necessary, break open and enter a house or other place described herein.
(d) Severability. If any subsection, sentence, clause, phrase, or word of this Section be for any reason declared unconstitutional or invalid or ineffective by any court of competent jurisdiction, such declaration shall not affect the validity or the effectiveness of the remaining portions of this section or any part thereof which can be given meaning without the offensive subsection, sentence, clause, phrase, or word.
(Ord. 22-7. Passed 3-17-22.)