A. Definitions: As used in this section, unless the context otherwise requires:
CONTROLLED SUBSTANCE: Shall have the meaning ascribed to it in section 102 of the Illinois controlled substances act 2 , as if that definition were incorporated herein.
DELIVER OR DELIVERY: The actual, constructive or attempted transfer of possession, with or without consideration, whether or not there is an agency relationship.
DRUG PARAPHERNALIA: All equipment, products and materials of any kind which are peculiar to and marketed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, sorting, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body cannabis or a controlled substance in violation of the cannabis control act or the Illinois controlled substances act 4 . It includes, but is not limited to:
1. Kits peculiar to and marketed for use in manufacturing, compounding, converting, producing, processing or preparing cannabis or a controlled substance.
2. Isomerization devices peculiar to and marketed for use in increasing the potency of any species of plant which is cannabis or a controlled substance.
3. Testing equipment peculiar to and marketed for private home use in identifying or in analyzing the strength, effectiveness or purity of cannabis or controlled substances.
4. Diluents and adulterants peculiar to and marketed for cutting cannabis or a controlled substance by private persons.
5. Objects peculiar to and marketed for use in ingesting, inhaling or otherwise introducing cannabis, cocaine, hashish or hashish oil into the human body including, where applicable, the following items: water pipes; carburetion tubes and devices; smoking and carburetion masks; miniature cocaine spoons and cocaine vials; carburetor pipes; electric pipes; air driven pipes; chillums; bongs; or ice pipes or chillers.
6. Any item whose purpose, as announced or described by the seller, is for use in violation of this section.
B. Prohibited Acts; Abatement:
1. Keeping Or Sale Prohibited: Any person within the city who keeps for sale, offers for sale, sells or delivers for any commercial consideration any item of drug paraphernalia violates this section for which a fine of one thousand dollars ($1,000.00) shall be imposed for each such item.
2. Premises Declared Public Nuisance: Any store, place or premises within the city from which or in which any item of drug paraphernalia is kept for sale, offered for sale, sold or delivered for any commercial consideration is declared to be a public nuisance.
3. Abatement Of Nuisance: The city attorney may commence an action to abate a public nuisance as described in subsection B2 of this section in the name of the city, in the circuit court. Upon being satisfied by affidavits or other sworn evidence that an alleged public nuisance exists, the court may, without notice or bond, issue a temporary injunction to enjoin any defendant from maintaining such nuisance and may issue an order restraining any defendant from removing or interfering with any property used in connection with the public nuisance.
If during the proceedings and hearings upon the merits, the existence of the nuisance is established, and it is established that such nuisance was maintained with the intentional, knowing or reckless permission of the owner, or an agent of the owner managing the premises, the court shall enter an order restraining all persons from maintaining or permitting such nuisance and from using the premises for a period of one year thereafter. However an owner, lessee or other occupant thereof may use such premises if the owner gives bond with sufficient security or surety, in an amount between five thousand dollars ($5,000.00) and ten thousand dollars ($10,000.00) approved by the court, payable to the city. Such bond shall include a condition that no offense specified in this section shall be committed at, in or upon the property described, and a condition that the principal obligor and surety assume responsibility for any fine, costs or damages incurred by any person resulting from such an offense. Any such bond posted with cash shall be subject to the unclaimed bond forfeiture provisions of title 1, chapter 9 of this code.
C. Exemptions: This section shall not apply to:
1. Items marketed for use in the preparation, compounding, packaging, labeling or other use of cannabis or a controlled substance as an incident to lawful research, teaching or chemical analysis and not for sale; or
2. Items marketed for, or historically and customarily used in connection with the planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting or inhaling of tobacco or any other lawful substance.
Items exempt under this subsection include, but are not limited to, garden hoses, rakes, sickles, baggies, tobacco pipes and cigarette rolling papers.
3. Items listed in subsection A of this section defining "drug paraphernalia" which are marketed for decorative purposes, when such items have been rendered completely inoperable or incapable of being used for any illicit purpose prohibited by this section.
In determining whether or not a particular item is exempt under this subsection, the trier of fact should consider, in addition to all other logically relevant factors, the following:
a. The general, usual, customary and historical use to which the item involved has been put;
b. Expert evidence concerning the ordinary or customary use of the item and the effect of any peculiarity in the design or engineering of the device upon its functioning;
c. Any written instructions accompanying the delivery of the item concerning the purposes or uses to which the item can or may be put;
d. Any oral instructions provided by the seller of the item at the time and place of sale or commercial delivery;
e. Any national or local advertising concerning the design, purpose or use of the item involved, and the entire context in which such advertising occurs;
f. The manner, place and circumstances in which the item was displayed for sale, as well as any item or items displayed for sale or otherwise exhibited upon the premises where the sale was made;
g. Whether the owner or anyone in control of the object is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
h. The existence and scope of legitimate uses for the object in the community.
D. Forfeiture Of Drug Paraphernalia:
1. All drug paraphernalia is subject to forfeiture.
2. Property subject to forfeiture under this section may be seized by any peace officer upon process issued by any court having jurisdiction over the property. Judgments in favor of the city in a criminal or forfeiture proceeding based upon this section against a person's specific property shall serve as process authorizing a police officer to seize such property without further process.
Seizure by a police officer may be made without process:
a. If there is probable cause to believe that the property is directly dangerous to health or safety and existing circumstances do not allow reasonable time for the officer to obtain lawful process.
c. The presence of items which are deemed violative of this section or are otherwise subject to its forfeiture provisions in an inventory shall not subject the entire inventory to seizure or forfeiture.
3. Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the law enforcement department or agency employing the seizing officer, subject only to the order and judgments of the circuit court having jurisdiction over the forfeiture proceedings. When property is seized under this section, the chief of police may place the property under seal or remove the property to a place designated by him.
4. No disposition may be made of property under seal until the validity of the seizure has been determined in a circuit court, unless such court, upon application therefor, orders the sale of perishable substances and the deposit of the proceeds of the sale with the clerk of the court. The circuit court shall rule on the validity of the seizure within thirty (30) days after the seizure, unless a continuance is obtained by a person from whom the items were seized or a person who otherwise has standing to complain, or by the city for good cause shown. If judgment is entered in favor of the person from whom the property is seized, all seized property shall be returned immediately. Appeals from orders of the circuit court shall be heard within sixty (60) days from the date judgment is entered. Judgments in favor of the person entitled to possession of the subject property shall serve as a mandate to the police chief to return same forthwith.
5. When property is forfeited under this section, the chief of police may retain it for official use, or forward it to the bureau of narcotics and dangerous drugs, United States department of justice, or its successor agency, for disposition.
E. Intent Of Section: This section is intended to be used solely for the suppression of the commercial traffic in items which, within the context of the sale or offering for sale, are clearly and beyond a reasonable doubt marketed for the illegal and unlawful use of cannabis or controlled substances. To this end all reasonable and common sense inferences shall be drawn in favor of the legitimacy of any transaction or item. (Ord. 13-27-0, 5-22-2013; amd. Ord. 19-43-0, 12-11-2019)
Notes
| 1 | 1. 410 ILCS 705/1 et seq.. |
| 2 | 2. 720 ILCS 550/3. |
| 2 | 2. 720 ILCS 570/102. |
| 4 | 3. 720 ILCS 550/3, 570/102. |
| 5 | 1. 725 ILCS 5/108-1 et seq. |