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(a) Definitions. For the purposes of this article, the following definitions apply:
(1) Nitrous oxide product means any balloon, container, canister, device or cartridge exclusively containing nitrous oxide, N2O, dinitrogen monoxide, dinitrogen oxide, nitrogen oxide, butyl nitrite, isobutyl nitrite, secondary butyl nitrite, tertiary butyl nitrite or laughing gas. Product packaging that lists nitrous oxide or any of the other chemicals listed in this definition as the exclusive ingredient shall constitute prima facie evidence that the product is a nitrous oxide product.
(2) Retail establishment means any place of business that offers any nitrous oxide product for sale at retail.
(3) Operator means any owner, licensee, proprietor, president, officer, director, manager, or supervisor of the retail establishment; or an employee with administrative or operational authority for the retail establishment.
(b) The operator of a retail establishment shall keep all nitrous oxide 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 retail establishment that sells nitrous oxide products shall display at least two (2) conspicuous signs, with at least one (1) in English and one (1) in Spanish, of not less than eleven (11) inches by fourteen (14) inches in size which state the following:
It is unlawful for a person to sell or deliver nitrous oxide products to a person under eighteen (18) years of age. Except in limited situations, such an offense is a class 5 felony.
It is unlawful for a person under the age of eighteen (18) to possess nitrous oxide. Such an offense is a class 3 misdemeanor.
It is unlawful for a person under the age of eighteen (18) to inhale, ingest or otherwise consume nitrous oxide. Such an offense is a class 1 misdemeanor.
(d) A retail establishment that sells nitrous oxide products shall record each transaction involving the sale of nitrous oxide products in a registry. The record of each sale shall include the date purchased, amount purchased, the printed name and address of the purchaser, the sex and age of purchaser and the signature of the purchaser. The establishment shall maintain each registry entry for one year from the date of the transaction. The retail establishment shall make the registry available during normal business hours for inspection and copying by any peace officer.
(e) Any nitrous oxide products found displayed in a retail establishment in violation of any subsection within this section constitute a nuisance and are subject to seizure and disposal by the city in the manner provided in subsection (f) of this section. Any nitrous oxide products remaining in a retail establishment found to have sold products in violation of any subsection within this section constitute a nuisance and are subject to seizure and disposal by the city in a manner provided in subsection (f) of this section.
(f) 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 (e). Before removing any products subject to seizure from the retail establishment, the peace officer shall give the operator of the establishment a reasonable opportunity to remove the products from the area of the establishment accessible to the public, unless the operator has been afforded this opportunity on a previous occasion within the preceding twelve (12) months.
(g) 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 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.
(h) 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 any subsection within 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.
(i) An operator who violates a provision of this section is guilty of a class 1 misdemeanor.
(j) The requirements of this section are in addition to any requirements under state and federal law.
(Ord. No. 10735, § 1, 11-24-09, eff. 2-1-10)
Any operator of a retail establishment may refuse to sell any nitrous oxide product to any person if the operator has reason to believe that the product will be used in any manner contrary to federal, state or local law. Facts that give reason to believe that the product will be used unlawfully include, but are not limited to, the following:
(1) The circumstances would lead a reasonable person to believe that any person is attempting to possess nitrous oxide products for the purpose of unlawful distribution to persons under the age of eighteen (18) as prohibited by state law.
(2) The transaction involves payment for nitrous oxide products in a total amount of more than one hundred dollars ($100.00).
Any person who refuses to make a retail sale in accordance with this subsection 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. 10735, § 1, 11-24-09, eff. 2-1-10)
(a) A person under the age of eighteen (18) commits an offense if the person possesses a nitrous oxide product unless the person under eighteen (18) years of age is delivering or accepting delivery in the person's capacity as an employee. Such an offense is a class 3 misdemeanor.
(b) A person under the age of eighteen (18) commits an offense if the person inhales, ingests uses or otherwise consumes a nitrous oxide product. Such an offense is a class 1 misdemeanor.
(c) This section shall not apply to any person who inhales, ingests uses or otherwise consumes nitrous oxide or any material containing nitrous oxide pursuant to an administration for the purpose of medical, surgical, or dental care by a person duly licensed to administer such an agent.
(Ord. No. 10735, § 1, 11-24-09, eff. 2-1-10)
ARTICLE VIII.
RESERVED*
RESERVED*
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* Editors Note: Ord. No. 9816, § 8, adopted Feb. 24, 2003, repealed Art. VIII, §§ 11-140--11-145, and enacted similar provisions set out in new § 16-32. Former Art. VIII pertained to loud or unruly gatherings and derived from Ord. No. 8683, § 1, adopted May 6, 1996; Ord. No. 9041, § 1, adopted April 13, 1998. See the Code Comparative Table.
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ARTICLE IX.
RESERVED*
RESERVED*
* Editors Note: Ord. No. 11331, § 1, adopted Dec. 8, 2015, repealed Art. IX, §§ 11-160 – 11-160.3. Former Art. IX pertained to crimes on library grounds and derived from Ord. No. 8770, § 1, adopted Nov. 4, 1996. See the Code Comparative Table.