(a) Definitions. For the purposes of this article, the following definitions apply:
(1) Pseudoephedrine product means any product containing ephedrine or pseudoephedrine and includes any compound, mixture or preparation that contains any detectable quantity of ephedrine, pseudoephedrine, norpseudoephedrine, or phenylpropanolamine or their salts, optical isomers or salts of optical isomers. Product packaging that lists ephedrine, pseudoephedrine, norpseudoephedrine, or phenylpropanolamine as an active ingredient shall constitute prima facie evidence that the product is a pseudoephedrine product.
(2) Retail establishment means any place of business that offers any pseudoephedrine product for sale at retail.
(3) Permittee means any person who holds or is required to hold a license or permit to sell drugs at retail pursuant to Title 32, Chapter 18 of the Arizona Revised Statutes.
(b) The operator and the permittee of a retail establishment shall keep all pseudoephedrine products behind a store counter or otherwise in a manner that is inaccessible to customers without the assistance of the operator or an employee of the establishment.
(c) A violation of this section is a class 1 misdemeanor.
(d) Any pseudoephedrine products found to be displayed in a retail establishment in violation of subsection (b) constitute a nuisance and are subject to seizure and disposal by the city in the manner provided in subsection (e) of this section.
(e) Products subject to seizure under this section may be seized by a peace officer under the authority of a search warrant or upon probable cause to believe that the products are subject to seizure pursuant to subsection (d). Before removing any products subject to seizure from the retail establishment, the peace officer shall give the operator or permittee of the establishment a reasonable opportunity to remove the products from the area of the establishment accessible to the public, unless the operator or permittee has been afforded this opportunity on a previous occasion within the preceding twelve (12) months.
(f) 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 subsection shall be served on the operator or permittee 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.
(g) A person receiving a notice of intent to dispose under this section may request a post-seizure hearing to determine the validity of the seizure within fifteen (15) days of receiving the notice. The court shall conduct the hearing within ten (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 subsections (b) and (d) of this section. 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 are forfeited to the city, and shall direct the city to destroy and dispose of the products.
(h) The requirements of this section are in addition to any requirements under state and federal law.
(Ord. No. 10211, § 1, 10-18-05)