(a) Definitions. For the purposes of this section:
Prohibited synthetic cannabinoid means any material, compound, mixture or preparation that contains any quantity of the following cannabimimetic substances and their salts, isomers, whether optical, positional or geometric, and salts of isomers, whenever the existence of such salts, isomers and salts of isomers is possible within the following specific chemical designation:
(1) Any synthetic cannabinoid designated within A.R.S. Section 13-3401; and
(2) EG-018.
Retail establishment means any business or other establishment that is engaged in the business of sales of tangible personal property at retail.
(b) Prohibitions. It is unlawful for any person or any operator or licensee of a retail establishment to sell, offer for sale, display for sale, or distribute any prohibited synthetic cannabinoid in the corporate limits of the city. This prohibition is in addition to any act otherwise prohibited under Arizona or federal law, and nothing in this section limits or in any way affects any other provision of Arizona or federal law.
(c) Classification and penalties. Any violation of this section is a public nuisance and is punishable as follows:
1. A violation of this section is a class 1 misdemeanor. Each day during which a violation of this section occurs shall constitute a separate offense. In addition to any other penalties imposed according to law, any person found guilty of this section shall be liable for payment of the costs of prosecution and all investigative costs incurred, including but not limited to any cost for forensic or laboratory testing.
2. Alternatively, a violation of this section may be charged as a civil infraction, with penalties and sanctions as provided in Chapter 8 of this Code. In addition to any other penalties imposed under Chapter 8, any person found responsible for a civil infraction violation of this section shall be liable for payment of the costs of prosecution and all investigative costs incurred, including but not limited to any cost for forensic or laboratory testing. Upon finding a person or retail establishment responsible for a civil infraction violation of this section, the court or hearing officer shall issue an abatement order as provided in Section 8-6.1 of this Code, ordering the person and/or retail establishment to abate the violation(s) and to remain in compliance with the abatement order for one (1) year, and advising the person and/or retail establishment that any violation of the order shall result in the imposition of additional fines and penalties, and may cause the filing of a criminal charge for failure to obey an order to abate, the penalties for which include mandatory jail pursuant to Section 11-122 of this Code.
3. In addition to the remedies and penalties described above, the City of Tucson shall have the authority to seek an injunction against any person or retail establishment violating the provisions of this section. In any action seeking an injunction, the city shall be entitled to collect its enforcement expenses, including forensic costs, law enforcement costs and reasonable attorney fees and costs incurred.
4. In addition to the remedies and penalties described above, for any retailer who is a licensee under Chapter 7, Article XIX of this Code relating to retail tobacco sales, violations of this section shall be a basis for the suspension of that license as follows:
i. The license of a licensee who violates this section on two (2) separate dates within a twelve (12) month period shall be suspended for a period of thirty (30) days.
ii. The license of a licensee who violates this section on three (3) separate dates within a twelve (12) month period shall be suspended for a period of twelve (12) months.
License suspensions under this subsection shall be administered as provided in Section 7-436 of this Code. A licensee under Chapter 7, Article XIX shall be notified in writing within ten (10) days by the police department whenever an operator or employee of the licensee is cited for a violation of this section, and the license shall not be suspended in the absence of such notification.
(d) Seizure. Any product found to be displayed for sale or offered for sale in violation of this section constitutes a nuisance and is subject to seizure by law enforcement. 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 the product is subject to seizure as provided in this section.
(e) Injunctive relief. The City of Tucson shall have the authority to seek an injunction against any person or retail establishments violating the provisions of this section. In any action seeking an injunction, the city shall be entitled to collect its enforcement expenses, including forensic and laboratory costs, law enforcement costs and reasonable attorney fees and costs incurred.
(f) Defense. It shall be a defense to any prosecution under this section that a product is specifically exempted by, or regulated within and in compliance with, state or federal law. For the purposes of this section, it shall not be a defense that a product is not subject to regulation unless the product is specifically exempt from regulation; mere "nonregulation" without a specific regulatory exemption does not render a product exempt under this section.
(Ord. No. 11460, § 2, 5-23-17)