Sec. 11-71. Sale of products containing pseudoephedrine.

   (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)

Sec. 11-72. Retail establishment's right to refuse sale.

Any operator, permittee, or employee of a retail establishment may refuse to sell any pseudoephedrine product to any person if the operator, permittee or employee has reason to believe that the product will be used in the unlawful manufacture of methamphetamine or other controlled substance. Facts that give rise to the reason to believe that the product will be used unlawfully include but are not limited to a "suspicious transaction" as defined in Section 13-3401 of the Arizona Revised Statutes; the attempted purchase of pseudoephedrine products in excess of the amounts permitted by Arizona law; the attempt to purchase pseudoephedrine products in a series of transactions in an effort to circumvent the limitations on sales; or the attempt to purchase pseudoephedrine products in conjunction with other products, such as red phosphorous or iodine, that are known to be used in manufacturing methamphetamine. Any person who refuses to make a retail sale in accordance with this section is not liable to its customer or any other person for any loss or damage caused in whole or in part by the refusal to sell.

(Ord. No. 10211, § 1, 10-18-05)

Sec. 11-73. Possession, sale or distribution of certain synthetic cannabinoids.

   (a)   Definitions. For the purposes of this section:

   Licensee means the person licensed or required to be licensed pursuant to Chapter 19 of this Code.

   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)

Secs. 11-74--11-87. Reserved.

ARTICLE III. SMOKING*

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*   Editors Note: Section 1 of Ord. No. 6384, adopted Feb. 3, 1986, changed the title of this article from "Nuisances" to "Smoking."

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Sec. 11-88. Reserved.

   Editors Note: Section 11-88 was repealed by § 2 of Ord. No. 6384. The provisions were reenacted by 4 as a new 11-67.