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HomeMy WebLinkAboutOrd.137.03-07-1984 BILL NO. 84-25 ORDINANCE N0. � �� AN ORDINANCE AMENDING THE CODE OF ORDINANCES OF THE CITY OF CAPE GIRARDEAU, MISSOURI BY ESTABLISHING A NEW CHAPTER 18, ARTICLE X PERTAINING TO DRUG RELATED OFFENSES BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: SECTION l. Chapter 18 of the Code of Ordinances of the City of Cape Girardeau, Missouri is hereby amended by adding the following: ARTICLE X. DRUG RELATED OFFENSES Sec. 18-160. Article Definitions. As used in this Article: l. "Administer" means the direct application of a con- trolled substance, whether by injection, inhalation, ingestion, or any other means, to the body of a patient or research subject by: (a) A practitioner (or, in his presence, by his authorized agent) , or (b) The patient or research subject at the direction and in the presence of the practitioner; 2 . "Agent" means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or dispenser. It does not include a common or contract carrier, public warehouseman, or employee of the carrier or warehouseman; 3 . "Controlled substance" means a drug, substance or immediate precursor which is listed in Schedules I through V of Chapter 195 RSMo or which has been or shall be added to such schedules by the Division of Health of the Missouri Department of Social Services or its successor agency; 4 . "Counterfeit substance" means a controlled substance which, or the container or labeling of which without authorization, bears the trademark, trade name, or other identifying mark, imprint, number or device, or any likeness thereof, of a manufacturer, distributor, :� A��,Y� .7, ��� �� +1' ' f or dispenser other than the person who in fact manu- factured, distributed, or dispensed the substance; 5 . "Deliver" , or "delivery" means the actual, constructive, or attempted transfer from one person to another of drug paraphernalia or of a controlled substance, or an imitation controlled substance, whether or not there is an agency relationship, and includes a sale; 6 . "Dentist" means a person authorized by law to practice dentistry in this state; 7 . "Drug paraphernalia" means all equipment, products and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, culti- vating, growing, harvesting, manufacturing, compound- ing, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a con- trolled substance or an imitation controlled substance in violation of this Article. It includes, but is not limited to: (a) Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived; (b) Kits used, intended for use, or designed for use in manufacturing, compounding, converting, pro- ducing, processing, or preparing controlled substances or imitation controlled substances; (c) Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance or an imitation controlled substance; (d) Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness or purity of control- led substances or imitation controlled substances; (e) Scales and balances used, intended for use, or designed for use in weighing or measuring con- trolled substances or imitation controlled sub- stances; (f) Diluents and adulterants, such as quinine hydro- chloride, mannitol, mannite, dextrose and lactose, 2. used, intended for use, or designed for use in cutting controlled substances or imitation con- trolled substances; (g) Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marihuana; (h) Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances or imitation controlled substances; (i) Capsules, balloons, envelopes and other containers used, intended for use, or designed for use in packaging small quantities of controlled sub- stances or imitation controlled substances; (j ) Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances or imitation controlled substances; (k) Hypodermic syringes, needles and other objects used, intended for use, or designed for use in parenterally injecting controlled substances or imitation controlled substances into the human body; (1) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise intro- ducing marihuana, cocaine, hashish, or hashish oil into the human body, such as : a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punc- tured metal bowls; b. Water pipes; c. Carburetion tubes and devices; d. Smoking and carburetion masks; e. Roach clips meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand; f, Miniature cocaine spoons and cocaine vials; g. Chamber pipes; 3. h. Carburetor pipes; i. Electric pipes; j . Air-driven pipes; k. Chillums; 1. Bongs; m. Ice pipes or chillers; In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following: (a) Statements by an owner or by anyone in control of the object concerning its use; (b) Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled sub- stance or imitation controlled substance; (c) The proximity of the object, in time and space, to a direct violation of this Article or of any corresponding federal, state or local law; (d) The proximity of the object to controlled sub- stances or imitation controlled substances; (e) The existence of any residue of controlled sub- stances or imitation controlled substances on the obj ect; (f) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons who he knows, or should reasonably know, intend to use the object to facilitate a violation of this Article; the innocence of an owner, or of anyone in control of the object, as to direct violation of this Article shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia; (g) Instructions, oral or written, provided with the object concerning its use; (h) Descriptive materials accompanying the object which explain or depict its use; (i) National or local advertising concerning its use; 4 . (j ) The manner in which the object is displayed for sale; (k) 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 tobacco products; (1) Direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise; (m) The existence and scope of legitimate uses for the object in the community; (n) Expert testimony concerning its use; 8 . "Dispense" means to deliver a narcotic or controlled dangerous drug to an ultimate user or research subject by or pursuant to the lawful order of a practitioner including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for such delivery. "Dispenser" means a practitioner who dispenses. "Delivery" means the actual, constructive or attempted transfer from one person to another of a controlled substance whether or not there is an agency relationship and includes a sale; 9 . "Distribute" means to deliver other than by adminis- tering or dispensing a controlled substance; 10. "Distributor" means a person who distributes; 11. "Drug" means substances recognized as drugs in the official United States Pharmacopoeia, Official Homeo- pathic Pharmacopoeia of the United States, or Official National Formulary, or any supplement to any of them; substances intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or animals; substances, other than food, intended to affect the structure or any function of the body of man or animals; and substances intended for use as a component of any article specified in this definition. It does not include devices or their components, parts, or accessories; 12. "Hospital" means a place or institution devoted primarily to the purpose of providing facilities for the diagnosis, care or treatment of sick, injured, or handicapped individuals and licensed by the division of health of Missouri in keeping with the requirements of the "Hospital Licensing Law" ; 5 . 13 . "Immediate precursor" means a substance which the state division of health has found to be and by rule designates as being the principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail or limit manu- facture; 14 . "Imitation controlled substance" means a substance that is not a controlled substance, which by dosage unit appears (including color, shape, size and markings) , or by representations made, would lead a reasonable person to believe that the substance is a controlled substance. In determining whether the substance is an "imitation controlled substance" the court or authority concerned should consider, in addition to all other logically relevant factors, the following: (a) Whether the substance was approved by the Federal Food and Drug Administration far over-the-counter (nanprescription or nonlegend) sales and was sold in the Federal Food and Drug Administration approved package, with the Federal Food and Drug Administration approved labeling information; (b) Statements made by an owner or by anyone else in control of the substance concerning the nature of the substance, or its use or effect; (c) Whether the substance is packaged in a manner normally used for illicit controlled substances; (d) Prior convictions, if any, of an owner, or anyone in control of the object, under state or federal law related to controlled substances or fraud; (e) The proximity of the substances to controlled substances; (f) Whether the consideration tended in exchange for the noncontrolled substance substantially exceeds the reasonable value of the substance considering the actual chemical composition of the substance and, where applicable, the price at which over- the-counter substances of like chemical composition sell; An imitation controlled substance does not include a noncontrolled substance that was initially introduced in commerce prior to the initial introduction into commerce of the controlled substance which it is alleged to imitate. Further- 6. more, an imitation controlled substance does not include a placebo or registered investigational drug either of which was manufactured, distributed, possessed or delivered in the ordinary course of professional practice or research; 15. "Manufacture" means the production, preparation, propagation, compounding or p.rocessing of drug para- phernalia or of a controlled substance, or an imitation controlled substance, either directly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance or an imitation controlled sub- stance by an individual for his own use or the pre- paration, compounding, packaging or labeling of a narcotic or dangerous drug: (a) By a practitioner as an incident to his administering or dispensing of a controlled substance or an imitation controlled substance in the course of his professional practice, or (b) By a practitioner or his authorized agent under his supervision, for the purpose of, or as an incident to, research, teaching or chemical analysis and not for sale; 16 . "Marihuana" means all parts of the plants genus Cannabis in any species or form thereof, including, but not limited to Cannabis Sativa L. , Cannabis Indica, Cannabis Americanna, Cannabis Ruderalis, and Cannabis Gigantea, whether growing or not, the seeds thereof, the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom) , fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination; 17. "Narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by 7 . . , � means of chemical synthesis, or by a combination of extraction and chemical analysis: (a) Opium and opiate, and any salt, compound, derivative or preparation of opium or opiate; (b) Any salt, compound, isomer, derivative, or prepa- ration thereof which is chemically equivalent or identical with any of the substances referred to in paragraph (a) of this subdivision but not including the isoquinoline alkaloids of opium; (c) Opium poppy and poppy straw; (d) Coca leaves and any salt, compound, derivative or preparation of coca leaves, and any salt, compound, isomer, drivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine; 18 . "Opiate" means any substance having an addiction- forming or addiction-sustaining liability. It does not include the dextrorotatory isomer of 3-methoxy-n- methyl-morphinan and its salts (dextromethorphan) . It does include its racemic and levorotatory forms; 19. "Opium poppy" means the plant of the species Papaver somniferum L. , except its seeds; 20. "Person" means individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity; 21. "Poppy straw" means all parts, except the seeds of the opium poppy, after mowing; 22. "Practitioner" means a physician, dentist, podiatrist, as defined in chapter 330, RSMo, veterinarian, scientific investigator, or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or administer a controlled substance in the course of professional practice or research in this state, or a pharmacy, hospital or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to or administer a controlled substance in the course of professional practice or research in this state; 23. "Production" includes the manufacture, planting, cultivation, growing, or harvesting of drug parapher- nalia or of a controlled substance or an imitation controlled substance; 8. . ' • , ` 24 . "Sale" includes barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant or employee; 25 . "Ultimate user" means a person who lawfully possesses a controlled substance or an imitation controlled substance for his own use or for the use of a member of his household or for administering to an animal owned by him or by a member of his household; 26 . "Wholesaler" means a person who supplies drug para- phernalia or controlled substances or imitation con- trolled substances that he himself has not produced or prepared, on official written orders, but not on pre- scriptions. Sec. 18-161. Prohibited acts. l. It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, distribute, or compound any controlled or counterfeit substance except as authorized by the laws of the United States or of the State of Missouri. 2 . It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance or an imitation controlled substance in violation of this Article. 3. It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manu- facture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance or an imitation controlled substance in violation of this Article. 4 . It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia. 9 . ' ' � . , n ' 5. It is unlawful for any person to use, or to possess with intent to use, any imitation controlled substance in violation of this Article. 6 . It is unlawful for any person to deliver, possess with intent to deliver, manufacture with intent to deliver, or cause to be delivered any imitation controlled substance. 7 . It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication, or to post or distribute in any public place, any advertisement or solicitation with reasonable knowledge that the purpase of the advertisement or solicitation is to promote the distribution of imitation controlled substances. Sec. 18-162. Burden of Proof of Any Exception or Exemption. In any action brought under this Article, it shall not be necessary to negative any exception, excuse, proviso, or exemption contained in the laws of the United States or of the State of Missouri and the burden of proof of any such exception, excuse, proviso or exemption shall be upon the defendant. Secs. 18-163 - 18-171 Reserved. SECTION 2. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by any Court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions hereof. SECTION 3 . This ordinance shall be in full force and effect ten days after its passage and approval. .`�--y, � PASSED AND APPROVED THIS � � DAY OF 0 /`-"`'�--�- . 1984 . 4 �.., � � MAYOR ATTEST: .� G� �� t-�-��--, ..C.--L-t._�._�ot___.._ CITY C ERK 10 .