A. Short Title: This section shall be known and may be cited as SYNTHETIC INTOXICANT ORDINANCE.
B. Purpose And Intent:
1. A product commonly referred to as "spice" is sold by local businesses. Spice typically appears as a packaged dried plant product or leaves, and is sold at gas stations, liquor stores, convenience stores, smoke shops and other outlets. While spice sometimes has a label warning against human consumption, that is its intended use. Businesses that sell spice openly solicit the product by claiming that, when smoked, spice causes a marijuana like high. Spice is a green leafy product sprayed with synthetic substances that mimic the effects of marijuana when smoked. Spice is marketed under numerous brand names, including spice, spice silver, spice gold, spice diamond, spice tropical synergy, spice artic synergy, spice gold spirit, PEP spice, PEPpourri, K2, genie, Yucatan fire dream, ex-ses, blaze, spike 99, spark, fusion, magma, hard core, and deliverance, as well as other names.
2. The use of substituted cathinones, commonly called "bath salts", has significantly increased throughout the United States and the United States drug enforcement administration (DEA) used its emergency scheduling authority to temporarily control mephedrone, methylenedioxypyrovalerone (MDPV), methylone, and other chemical compounds found in "bath salts" finding that ingestion of these substances can cause serious injury and death. The city council also finds that death and serious injury can be caused by bath salts.
3. Spice and bath salts are synthetic intoxicants that endanger the public. While distribution of these products is a violation of state law, available penalties do not appear to adequately deter vendors because the profitability from the sale of these products may outweigh the risks associated with prosecution. Manufacturers and vendors of synthetic intoxicants change the names, labeling, or chemical composition of the products to avoid prosecution. Consumers, including minors, quickly learn the name of the new mock substance by word of mouth or on the internet. Businesses that distribute synthetic intoxicants create a public nuisance in the city as defined by state law and city ordinances.
4. Emergency room physicians report that users of these products experience serious side effects, including convulsions, anxiety, dangerously elevated heart rates, increase blood pressure, vomiting, and disorientation. According to the February 8, 2012, date from the American Association Of Poison Control Centers, in one year there has been a greater than two (2) fold increase in the number of calls about exposure to synthetic intoxicants.
5. Field testing technology is inadequate in many cases and the products being sold to the public have been seized from the vendor and lab tested. Lab testing is costly and time consuming. If a particular brand name product is determined to be an illegal substance, that substance will often be repackaged or relabeled by the time the police return to the business. This subterfuge wastes police resources and further endangers the public.
6. Synthetic intoxicants tend to avoid drug testing methods used to determine whether a person has consumed a controlled substance. Some of the most dangerous consumers, those prohibited from consumption of illicit drugs or alcohol by court orders or terms of probation, gravitate toward these products because they are difficult to detect or undetectable.
7. Synthetic intoxicants endanger the health and safety of the community. This section is remedial, promulgated pursuant to the city's home rule authority.
C. Definitions:
BATH SALTS: The substance defined by New Mexico Statutes Annotated 1978 section 30-31-6C(20) - (25) and the addition of substances by state regulation, including, but not limited to, 16.19.20 New Mexico administrative code, section 65 as amended from time to time.
BUSINESS: The premises, whether it be a main business location or an outlet, branch or other location thereof, temporary or otherwise, to which the public is expressly or impliedly invited for the purpose of transacting business. The term "business" includes the salespersons on site.
BUSINESS DAY: Regular business hours Monday through Friday. The day the business receives a cease and desist order and notice of violation does not count as a business day. If the business has irregular hours or the hours are not posted, a business day shall be the next two (2) full twenty four (24) hour weekdays after receipt of a cease and desist order and notice of violation.
BUSINESS OPERATOR: The person or persons on site at the business in actual or apparent control of the business during business hours.
BUSINESS REGISTRATION: The privilege to register to do business and the registration of a business as set out in city ordinance.
CEASE AND DESIST ORDER AND NOTICE OF VIOLATION: Documentation delivered to the business operator ordering the business closed for inspection and testing.
FINAL CEASE AND DESIST ORDER AND NOTICE OF VIOLATION: A cease and desist order and notice of violation that was not appealed or was affirmed by a hearing officer or court.
LEGAL HOLIDAYS: The days as determined by federal and state governmental bodies.
MAYOR: The mayor of the city of Gallup or any person with authority from the mayor to enforce this section. The term includes, without limitation, the mayor's agents, the city manager, and any city employee authorized by law to commence a criminal action in the magistrate court.
PERSON: An individual, proprietorship, partnership, corporation, association, or other legal entity.
POLICE OFFICER: A sworn member of the Gallup police department, the McKinley County sheriff's office or the New Mexico state police.
SALESPERSON: Any agent or independent contractor of the business employed or engaged to transact business with the public on the premises.
SPICE: A synthetic cannabinoid as defined by New Mexico Statutes Annotated 1978, section 30-31-6 (2011), or substances added to the definition of a synthetic cannabinoid by state regulation, including, but not limited to, 16.19.20 New Mexico administrative code, section 65 as amended from time to time.
SYNTHETIC INTOXICANT: Bath salts or spice.
TRANSFER OF OWNERSHIP OR CONTROL OF A BUSINESS: 1. The sale, lease, or sublease of the business;
2. The transfer of securities that constitute a controlling interest in the business, whether by sale, exchange, or similar means; or
3. The establishment of a trust, gift, or other similar legal device that transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
D. Violation: It is a violation of this section for a business to manufacture, stock, sell, distribute, dispense, possess, purchase, advertise for sale, publicly display for sale, give, trade, offer to sell, order, or offer to order a synthetic intoxicant.
E. Enforcement:
1. If the mayor or a police officer has probable cause to believe a violation has occurred, the mayor or the police officer shall obtain a sample of the substance believed to be a synthetic intoxicant. The sample shall be tested by methods commonly utilized by law enforcement labs to determine whether a substance is a synthetic intoxicant. If the test determines that the substance is a synthetic intoxicant, the mayor or the police officer shall issue and deliver a cease and desist order and notice of violation upon the business operator and seize the entire inventory of the synthetic intoxicant from the business. The cease and desist order and notice of violation shall be filed with the city clerk. When the cease and desist order and notice of violation is delivered to the business, if the mayor or a police officer has probable cause to believe that the synthetic intoxicant has been relabeled, repackaged or incorporated into other substances, those substances shall also be seized and tested. If the test is negative, the inventory shall be returned to the business. The transfer of ownership or control of the business does not avoid the seizure authorized by this subsection.
2. Upon receipt of the cease and desist order and notice of violation by the business operator, the business shall immediately allow and not interfere with the seizure of the inventory which is a synthetic intoxicant or is reasonably believed to be a synthetic intoxicant that has been relabeled, repackaged or incorporated into other substances.
3. If a business is assessed a second final cease and desist order and notice of violation within five (5) years of a first final cease and desist order and notice of violation, the business shall close and cease transacting business for three (3) business days after the second final cease and desist order and notice of violation is assessed. During the three (3) day closure, the mayor or a police officer, in cooperation with other agencies if required, shall inspect the premises, find and seize any remaining synthetic intoxicants or precursor chemicals or materials on site. The transfer of ownership or control of the business does not avoid the process authorized by this subsection. No inventory, merchandise, personal property, chattel property or other property shall be received by or taken off the business premises during closure unless authorized by a police officer or the mayor.
4. If a business is assessed a third final cease and desist order and notice of violation within five (5) years of a second final cease and desist order and notice of violation, the business shall cease conducting business in the city and will be barred from business registration for a period of one year from the date the third final cease and desist order and notice of violation is assessed. The transfer of ownership or control of the business does not avoid the operation of this subsection.
5. The city of Gallup shall have the authority to seek an injunction to compel compliance with this section on grounds that the business is causing irreparable harm to the community by distributing synthetic intoxicants.
F. Appeal:
1. Upon delivery of a cease and desist order and notice of violation, the business has ten (10) days to appeal to a hearing officer under this code.
2. The decision of the hearing officer may be appealed to a court of competent jurisdiction. (Ord. 2013-2, 3-26-2013)