A. Sale Or Delivery:
1. Prohibitions:
a. Any person who keeps for sale, offers for sale, sells or delivers for any commercial consideration any item of drug paraphernalia commits a class 4 felony for which a minimum fine of one thousand dollars ($1,000.00) for each such item shall be imposed.
b. Any person eighteen (18) years of age or older who sells or delivers for any commercial consideration any item of drug paraphernalia to a person under eighteen (18) years of age is guilty of a class 3 felony.
c. Any person who sells or delivers for a commercial consideration any item of drug paraphernalia to a woman he knows to be pregnant is guilty of a class 2 felony.
d. No person or business shall acquire, offer for sale, sell, or deliver any item defined by Illinois state law (720 [LCS 660/2 (d)) as drug paraphernalia, knowing, or under circumstances where one reasonably should know, that such drug paraphernalia will be used to ingest, inject, inhale, or otherwise introduce into the human body any controlled or banned substance under state law (720 [LCS 570/102), and if that item has also been deemed by the Chief of Police or his designee, upon a supported basis, to be an item almost wholly used to ingest, inject, inhale, or otherwise introduce into the human body any controlled or banned substance under state law (720 ILCS 570/102), including but not limited to, glass tubing commonly utilized for ingestion of crack cocaine, glass or metal pipes commonly used to inhale or to introduce any controlled or banned substance into the human body. Upon the order of the Chief of Police or his designee, with the supported basis that an item or items are used almost wholly to ingest, inject, inhale, or otherwise introduce into the human body controlled or banned substances under state or federal law, or this ordinance as stated above, the person or business shall cease to expose for sale, sell or offer for sale, or delivery to any person, directly or indirectly, the item or items so designated within 14 days of the issuance of such order.
e. Violation of sub-paragraph d. of this Section 6-5C-5
A.1. shall be punishable by a fine of up to one hundred dollars ($100.00) and incarceration of up to thirty (30) days in jail for the first offense, and up to seven hundred fifty dollars ($750.00) and up to thirty (30) days in jail for the second and each subsequent offense.
2. Nuisance Declared; Action By City:
a. Any store, place, or premises 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.
b. The city attorney may commence an action in the circuit court, in the name of the people of the city of Jerseyville, Illinois, to abate the public nuisance as described in subsection A2a of this section.
c. Upon being satisfied by affidavits or other sworn evidence that an alleged public nuisance exists, the court may, without bond, enter a temporary restraining order to enjoin any defendant from maintaining the nuisance and may, without bond, enter a preliminary injunction restraining any defendant from removing or interfering with any property used in connection with the public nuisance.
d. If, during the proceedings and hearings upon the merits, the existence of the nuisance is established, and it is established that the 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 the nuisance and from using the premises for a period of one year thereafter. However an owner, lessee, or other occupant thereof may use the 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 people of the city of Jerseyville, Illinois. The 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.
B. Possession Of Drug Paraphernalia: 720 Illinois Compiled Statutes 600/3.5 is adopted in full as follows or as subsequently amended:
(a) A person who knowingly possesses an item of drug paraphernalia with the intent to use it in ingesting, inhaling, or otherwise introducing a controlled substance into the human body, or in preparing a controlled substance for that use, is guilty of a Class A misdemeanor for which the court shall impose a minimum fine of $750.00 in addition to any other penalty prescribed for a Class A misdemeanor. This subsection (a) does not apply to a person who is legally authorized to possess hypodermic syringes or needles under the Hypodermic Syringes and Needles Act.
(b) In determining intent under subsection (a), the trier of fact may take into consideration the proximity of the controlled substances to drug paraphernalia or the presence of a controlled substance on the drug paraphernalia.
C. Exempt Items; Determination: 720 Illinois Compiled Statutes 600/4 is adopted in full as follows or as subsequently amended:
This Act shall not apply to:
(a) Items used in the preparation, compounding, packaging, labeling, or other use of a controlled substance as an incident to lawful research, teaching, or chemical analysis and not for sale.
(b) Items 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 cannabis, tobacco or any other lawful substance.
Items exempt under this subsection include, but are not limited to, garden hoes, rakes, sickles, baggies, tobacco pipes, and cigarette rolling papers.
(c) Items listed in Section 2 of this act which are used for decorative purposes, when such items have been rendered completely inoperable or incapable of being used for illicit purpose prohibited by this act.
(d) A person who is legally authorized to possess hypodermic syringes or needles under the Hypodermic Syringes and Needles Act.
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:
(1) the general, usual, customary, and historical use to which the item involved has been put;
(2) 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;
(3) any written instructions accompanying the delivery of the item concerning the purposes or uses to which the item can or may be put;
(4) any oral instructions provided by the seller of the item at the time and place of sale or commercial delivery;
(5) any national or local advertising concerning the design, purpose or use of the item involved, and the entire context in which such advertising occurs;
(6) 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;
(7) 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 cannabis or tobacco products;
(8) the existence and scope of legitimate uses for the object in the community.
D. Forfeiture And Seizure Of Property: 720 Illinois Compiled Statutes 600/5 is adopted in full as follows or as amended:
(a) All drug paraphernalia is subject to forfeiture.
(b) Property subject to forfeiture under this Act 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 Act 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:
(1) 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; or
(2) In accordance with the provisions of The Code of Criminal Procedure of 1963, as amended.
(3) The presence of items which are deemed violative of this Act or are otherwise subject to the forfeiture provisions in an inventory shall not subject the entire inventory to seizure or forfeiture.
(c) Custody Of Police: 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 Act, the chief administrative officer of the seizing department or agency may place the property under seal or remove the property to a place designated by him.
(d) No disposition may be made of property under sea/ 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 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 or State for good cause shown. In no event shall a continuance be granted to the City or State pursuant to this section extend beyond 30 days. If judgment is entered in favor of the person from whom the property is seized, al/ seized property shall be returned immediately. Appeals from orders of the Circuit Court shall be heard within 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 agency holding such property to return same forthwith.
(e) When property is forfeited under this Act the chief administrative officer of the seizing department of agency 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. Additional Statutes Adopted: 720 Illinois Compiled Statutes 600/1, 600/2, 600/6, and 600/7, as amended from time to time, are adopted in full by reference and made a part of this code. (Ord. 1213, 8-26-1997; amd. 2010 Code; Ord. 1688, 12-14-2022; Ord. 1782, 11-29-2022)