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HomeMy WebLinkAboutOrd.5616.02-06-2023 BILL NO. 23-08 ORDINANCE NO. 9,01(0 AN ORDINANCE AMENDING CHAPTER 17 OF THE CODE OF ORDINANCES OF THE CITY OF CAPE GIRARDEAU, MISSOURI, REGARDING THE DECRIMINALIZATION OF MARIJUANA BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: ARTICLE 1 . Section 17-303, entitled "Definitions", of Article X of Chapter 17 of the City Code, reading as follows : Sec. 17-303. Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Administer means the direct application of a controlled substance, whether by injection, inhalation, ingestion, or any other means, to the body of a patient or research subject by a practitioner (or, in his presence, by his authorized agent) or the patient or research subject at the direction and in the presence of the practitioner. Agent means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or dispenser. The term "agent" does not include a common or contract carrier, public warehouseman, or employee of the carrier or warehouseman. Controlled substance means a drug, substance or immediate precursor which is listed in schedules I through V of RSMo. Ch. 195 . 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, or dispenser other than the person who in fact manufactured, distributed, or dispensed the substance. 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. Dentist means a person authorized by law to practice dentistry in the state. 1 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 . Distribute means to deliver other than by administering or dispensing a controlled substance. Distributor means a person who distributes . Drug means substances recognized as drugs in the official United States Pharmacopoeia, Official Homeopathic 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. The term "drug" does not include devices or their components, parts, or accessories . Drug paraphernalia means all equipment, products and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, acka in P g� g, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance or an imitation controlled substance in violation of this article. The term "drug paraphernalia" includes those specific items listed in RSMo. 195 . 010 (18) . Hospital means a place devoted primarily to the maintenance and operation of facilities for the diagnosis, treatment or care, for not less than 24 hours in any week, of three or more nonrelated individuals suffering from illness, disease, injury, deformity or other abnormal physical conditions; or a place devoted primarily to provide, for not less than 24 consecutive hours in any week, medical or nursing care for three or more nonrelated individuals . The term "hospital" does not include convalescent, nursing, shelter or boarding homes as defined in RSMo. Ch. 198 . Imitation controlled substance means a substance that is not a controlled substance, which by dosage unit appearance (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 2 court or authority concerned should consider, in addition to all other logically relevant factors, the following: (1) Whether the substance was approved by the Federal Food and Drug Administration for over-the-counter (nonprescription 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. (2) 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. (3) Whether the substance is packaged in a manner normally used for illicit controlled substances . (4) 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. (5) The proximity of the substances to controlled substances. (6) Whether the consideration tendered 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 placebo or registered investigational drug either of which was manufactured, distributed, possessed or delivered in the ordinary course of professional practice or research. 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 manufacture. Manufacture means the production, preparation, propagation, compounding or processing of drug paraphernalia 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 the term "manufacture" does not include the preparation or compounding of a controlled substance or an imitation controlled substance by an individual 3 for his own use or the preparation, compounding, packaging or labeling of a narcotic or dangerous drug: (1) 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 (2) 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. Marijuana 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 Americana, 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. The term "marijuana" 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. Narcotic drug means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical analysis: (1) Opium, opiate, and any derivative of opium or opiate, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of the isomers, esters, ethers, and salts is possible within the specific chemical designation. The term "narcotic drug" does not include the isoquinoline alkaloids of opium; (2) Coca leaves, but not including extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed; (3) Cocaine or any salt, isomer, or salt of isomer thereof; (4) Ecgonine, or any derivative, salt, isomer, or salt of isomer thereof; (5) Any compound, mixture, or preparation containing any quantity of any substance referred to in subsections (1) to (4) of this definition. Opiate or opioid means any substance having an addiction- forming or addiction-sustaining liability similar to morphine or 4 being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. The term "opiate" or "opioid" includes its racemic and levorotatory forms . The term "opiate" or "opioid" does not include, unless specifically controlled under RSMo. 195. 017, the dextrorotatory isomer of 3-methoxy-n-methyl- morphinan and its salts (dextromethorphan) . Opium poppy means the plant of the species Papaver somniferum L. , except its seeds . Poppy straw means all parts, except the seeds of the opium poppy, after mowing. Practitioner means a physician, dentist, podiatrist, as defined in RSMo. Ch. 330, 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. Production includes the manufacture, planting, cultivation, growing, or harvesting of drug paraphernalia or of a controlled substance or an imitation controlled substance. 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. 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. The term "immediate family" means a husband, wife, parent, child, sibling, stepparent, stepchild, stepbrother, stepsister, grandparent, or grandchild. Wholesaler means a person who supplies drug paraphernalia or controlled substances or imitation controlled substances that he himself has not produced or prepared, on official written orders, but not on prescriptions . is> 'hereb epeaied.111W4g0 entirety and a new Section 17-303, entitled "Definitions", of Article X of Chapter 17 of the City Code, is hereby enacted in lieu thereof, in words and figures, to read as follows, to-wit: 5 Sec. 17-303 . Definitions . The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Administer means the direct application of a controlled substance, whether by injection, inhalation, ingestion, or any other means, to the body of a patient or research subject by a practitioner (or, in his presence, by his authorized agent) or the patient or research subject at the direction and in the presence of the practitioner. Agent means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or dispenser. The term "agent" does not include a common or contract carrier, public warehouseman, or employee of the carrier or warehouseman. Controlled substance means a drug, substance or immediate precursor which is listed in schedules I through V of RSMo. Ch. 195, but shall not include marijuana to the extent permitted by state law. 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, or dispenser other than the person who in fact manufactured, distributed, or dispensed the substance. 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. Dentist means a person authorized by law to practice dentistry in the state. 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 . Distribute means to deliver other than by administering or dispensing a controlled substance. Distributor means a person who distributes . 6 Drug means substances recognized as drugs in the official United States Pharmacopoeia, Official Homeopathic 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. The term "drug" does not include devices or their components, parts, or accessories . Drug paraphernalia means all equipment, products and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance or an imitation controlled substance in violation of this article. The term "drug paraphernalia" includes those specific items listed in RSMo. 195 . 010 (18) . Hospital means a place devoted primarily to the maintenance and operation of facilities for the diagnosis, treatment or care, for not less than 24 hours in any week, of three or more nonrelated individuals suffering from illness, disease, injury, deformity or other abnormal physical conditions; or a place devoted primarily to provide, for not less than 24 consecutive hours in any week, medical or nursing care for three or more nonrelated individuals . The term "hospital" does not include convalescent, nursing, shelter or boarding homes as defined in RSMo. Ch. 198 . Imitation controlled substance means a substance that is not a controlled substance, which by dosage unit appearance (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: (1) Whether the substance was approved by the Federal Food and Drug Administration for over-the-counter (nonprescription 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. (2) 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. 7 (3) Whether the substance is packaged in a manner normally used for illicit controlled substances . (4) 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. (5) The proximity of the substances to controlled substances . (6) Whether the consideration tendered 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 placebo or registered investigational drug either of which was manufactured, distributed, possessed or delivered in the ordinary course of professional practice or research. 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 manufacture. Manufacture means the production, preparation, propagation, compounding or processing of drug paraphernalia 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 the term "manufacture" does not include the preparation or compounding of a controlled substance or an imitation controlled substance by an individual for his own use or the preparation, compounding, packaging or labeling of a narcotic or dangerous drug: (1) 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 (2) 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. Marijuana means all parts of the plants genus Cannabis in any species or form thereof, including, but not limited to, Cannabis 8 Sativa L. , Cannabis Indica, Cannabis Americana, 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. The term "marijuana" 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. Narcotic drug means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical analysis : (1) Opium, opiate, and any derivative of opium or opiate, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of the isomers, esters, ethers, and salts is possible within the specific chemical designation. The term "narcotic drug" does not include the isoquinoline alkaloids of opium; (2) Coca leaves, but not including extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed; (3) Cocaine or any salt, isomer, or salt of isomer thereof; (4) Ecgonine, or any derivative, salt, isomer, or salt of isomer thereof; (5) Any compound, mixture, or preparation containing any quantity of any substance referred to in subsections (1) to (4) of this definition. Opiate or opioid means any substance having an addiction- forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. The term "opiate" or "opioid" includes its racemic and levorotatory forms. The term "opiate" or "opioid" does not include, unless specifically controlled under RSMo. 195 . 017, the dextrorotatory isomer of 3-methoxy-n-methyl- morphinan and its salts (dextromethorphan) . Opium poppy means the plant of the species Papaver somniferum L. , except its seeds . Poppy straw means all parts, except the seeds of the opium poppy, after mowing. 9 Practitioner means a physician, dentist, podiatrist, as defined in RSMo. Ch. 330, 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 . Production includes the manufacture, planting, cultivation, growing, or harvesting of drug paraphernalia or of a controlled substance or an imitation controlled substance . 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. 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. The term "immediate family" means a husband, wife, parent, child, sibling, stepparent, stepchild, stepbrother, stepsister, grandparent, or grandchild. Wholesaler means a person who supplies drug paraphernalia or controlled substances or imitation controlled substances that he himself has not produced or prepared, on official written orders, but not on prescriptions . ARTICLE 2 . Section 17-304, entitled "Prohibited acts", of Article X of Chapter 17 of the City Code, reading as follows: Sec. 17-304 . Prohibited acts . (a) 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 this state or of the United States . A violation of this subsection shall be punishable pursuant to section 1-10, but a violation of this subsection for the possession of marijuana shall be punishable by a fine not exceeding $500. 00. (b) 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. 10 A violation of this subsection shall be punishable by a fine not exceeding $500. 00 . (c) 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, 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 . (d) 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. (e) It is unlawful for any person to use, or to possess with intent to use, any imitation controlled substance in violation of this article. (f) 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. (g) 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 purpose of the advertisement or solicitation is to promote the distribution of imitation controlled substances . is rherebytrepealed entirety and a new Section 17-304, entitled "Prohibited Acts", of Article X of Chapter 17 of the City Code, is hereby enacted in lieu thereof, in words and figures, to read as follows, to-wit: Sec. 17-304 . Prohibited acts . (a) 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 this state or of the United States . (b) It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, 11 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. (c) 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, 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 . (d) 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 . (e) It is unlawful for any person to use, or to possess with intent to use, any imitation controlled substance in violation of this article. (f) 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. (g) 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 purpose of the advertisement or solicitation is to promote the distribution of imitation controlled substances ARTICLE 3 . 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. ARTICLE 4 . It is the intention of the governing body and it is hereby ordained that the provisions of this ordinance shall become and be made a part of the Code of Ordinances of the City of Cape Girardeau, Missouri, and the sections of this Code may be renumbered to accomplish such intention. 12 ARTICLE 5 . This ordinance shall be in full force and effect ten days after its passage and approval. PASSED AND APPROVED THIS DAY OF- 2023. Stacy Kin er, ay r ATTEST: A Z ruce Tay og D puty City Clerk 4 Q W R8 IIx10 BEAL 13