Broward County |
Code of Ordinances |
Chapter 20. LICENSES AND BUSINESS REGULATIONS |
Article I. IN GENERAL |
§ 20-13. Sale, giving away, offer or advertisement for sale, or public display for sale, of synthetic cannabinoid herbal incense and contraband bath salts prohibited.
(a)
Purpose and Intent. The Broward County Board of County Commissioners ("Board") finds and declares that the products and synthetic substances described hereunder are commonly used as alternatives to marijuana, psychoactive drugs, stimulants, and other illegal drugs. The Board finds that these synthetic substances are particularly appealing to youth, are potentially dangerous to users in the short term, and the long term effects are not yet known. The Board finds that products which contain these synthetic substances often use a disclaimer that the product is "not for human consumption," in order to avoid regulations requiring the manufacturer to list the product's active ingredients. The Board finds that drug designers and chemists can quickly create new synthetic drugs and stimulants once federal or state law makes a particular synthetic drug or stimulant illegal. As such, the Board finds that there is a need to declare illegal the sale, giving away, offer or advertisement for sale, and public display for sale, of synthetic substances that mimic illegal controlled substances, which have not yet been categorized as illegal controlled substances under federal or state law. The Board further finds that it is proper and necessary for the Board to exercise its authority to safeguard and protect the public health, safety, and welfare by taking this action.
(b)
Application. This section shall be applicable in the incorporated and unincorporated areas of Broward County, with the enforcement of this section in the unincorporated areas being the responsibility of Broward County and the enforcement of this section in the incorporated areas being the responsibility of the respective municipalities.
(c)
Preemption. This section shall not preempt any municipal ordinance governing the subject area herein that conflicts with, or is more stringent than, this section or that declares illegal a substance that is not declared illegal by this section.
(d)
Definitions. For purposes of this section, the following words and phrases shall have the following meanings:
(1)
Contraband bath salts shall mean any substance or product, whether in crystal, powder, pill, tablet, capsule, liquid, and other forms, containing a synthetic stimulant or to which a synthetic stimulant has been sprayed, applied, or otherwise added, and that can be consumed or placed into a pipe, cigarette paper, atomizer, or drug paraphernalia for purposes of ingestion by smoking, inhaling, or other method, regardless of whether the substance is marketed as not for the purpose of human consumption, and regardless of how the substance is labeled. "Contraband bath salts" shall not include traditional therapeutic bath salts that do not contain a synthetic stimulant, such as Epsom salts, baking soda, borax, and table salt, among others.
(2)
Person shall mean any natural person, individual, owner, operator, responsible party, wholesaler, retailer, licensed or unlicensed business, public or private corporation, firm, association, joint venture, partnership, or any other entity whatsoever, or any combination thereof, of whatever kind.
(3)
Structurally similar shall mean chemical substitutions of a common chemical backbone associated with synthetic cannabinoids, contraband bath salts, or any mimicking compounds of such chemicals, including any related salts, isomers, and salts of isomers that are listed in the controlled substance schedules in Chapter 893, Florida Statutes, as amended, or otherwise prohibited by federal or state law.
(4)
Synthetic cannabinoid herbal incense shall mean aromatic or nonaromatic plant material or product, containing a synthetic drug or to which a synthetic drug has been sprayed, applied, or otherwise added, that is distributed in a loose, leafy, powder, or granular form or in a compressed block or blocks that can be crushed to result in a powder or granular form, and can be placed into a pipe, cigarette paper, atomizer, or drug paraphernalia for purposes of ingestion by smoking, inhaling, or other method, regardless of whether the substance is marketed as not for the purpose of human consumption, and regardless of how the substance is labeled.
(5)
Synthetic drug shall mean any chemical or mixture of chemicals, however packaged, that is structurally similar to synthetic cannabinoids, tetrahydrocannabinol ("THC"), or any mimicking compounds of such chemicals, including any related salts, isomers, and salts of isomers that are listed in the controlled substance schedules in Chapter 893, Florida Statutes, as amended, or otherwise prohibited by federal or state law. Packaging that indicates, suggests, or implies that a product mimics the pharmacological effects of marijuana, such as "fake pot" or "fake weed," shall create a presumption that the product contains a synthetic drug, as defined herein. "Synthetic drug" shall not include any substance currently listed in the controlled substance schedules in Chapter 893, Florida Statutes, as amended, or otherwise prohibited by federal or state law.
(6)
Synthetic stimulant shall mean any chemical or mixture of chemicals, however packaged, that has a stimulant effect on the central nervous system and is structurally similar to fluoromethcathinone, 3,4-methylenedioxypyrovalerone ("MDPV"), cathinone, methylmethcathinone, methoxymethcathinone, methcathinone, 3,4-methylenedioxymethamphetamine ("MDMA"), 3,4-methylenedioxymethcathinone ("MDMC"), or any mimicking compounds of such chemicals, including any related salts, isomers, and salts of isomers that are listed in the controlled substance schedules in Chapter 893, Florida Statutes, as amended, or otherwise prohibited by federal or state law. Packaging that indicates, suggests, or implies that a product mimics the pharmacological effects of cathinone, methcathinone, methylmethcathinone, MDPV, MDMC, MDMA, methoxymethcathinone, fluoromethcathinone, amphetamine, ecstasy, or cocaine shall create a presumption that the product contains a synthetic stimulant, as defined herein. "Synthetic stimulant" shall not include any substance currently listed in the controlled substance schedules in Chapter 893, Florida Statutes, as amended, or otherwise prohibited by federal or state law.
(e)
Sale, giving away, offer or advertisement for sale, or public display for sale, of synthetic cannabinoid herbal incense and contraband bath salts prohibited. It shall be unlawful for any person to sell, give away, offer or advertise for sale, or publicly display for sale, synthetic cannabinoid herbal incense and contraband bath salts, as defined herein.
(f)
Affirmative defense. It shall be an affirmative defense to prosecution of a violation of this section if the sale, giving away, offer or advertisement for sale, or public display for sale, of any synthetic cannabinoid herbal incense or contraband bath salts is pursuant to the direction or prescription of a licensed physician or dentist authorized in the state of Florida to direct or prescribe such synthetic substances.
(g)
Seizure and destruction of synthetic cannabinoid herbal incense and contraband bath salts. Synthetic cannabinoid herbal incense and contraband bath salts prohibited herein may be seized by law enforcement officers and may be destroyed in the same manner used to destroy narcotics and contraband substances, after their use for evidentiary purposes in any judicial proceeding is no longer required.
(h)
Injunctive Relief. Broward County shall have the authority to seek an injunction against any person violating the provisions of this section. In any action seeking an injunction, Broward County shall be entitled to collect its enforcement expenses, including forensic costs, law enforcement costs, and reasonable attorney fees and costs incurred at trial and on appeal.
(i)
Subsequent federal or state action. Pursuant to Chapter 893, Florida Statutes, it is unlawful for any person to sell substances named or described in the controlled substance schedules of said chapter, and the state, the Department of Law Enforcement, and all peace officers of the state shall enforce said provisions. In recognition that Florida law preempts local government regulation of such controlled substances, the following limitations are placed on the prohibitions and restrictions contained in this section:
(1)
In the event that the United States Congress or a federal agency amends federal law to include a particular substance or otherwise enacts or amends a federal law providing for criminal penalties for the prohibitions of substances set forth in this section, then upon the effective date of such enactment or amendment, the provisions of this section addressed by federal law shall no longer be effective. Any violations of this section committed prior to Congress or a federal agency enacting such federal law may be prosecuted.
(2)
In the event that the Florida Legislature amends the controlled substance schedules in Section 893.01, Florida Statutes, to include a particular substance or otherwise enacts or amends a state statute providing for criminal penalties for the prohibitions of substances set forth in this section, then upon the effective date of such enactment or amendment, the provisions of this section addressed by the state statute shall no longer be effective. Any violations of this section committed prior to the Florida Legislature enacting such statute may be prosecuted.
(3)
In the event that the Florida Attorney General, pursuant to the rulemaking authority provided in Section 893.035, Florida Statutes, adds any substance regulated hereunder to the controlled substance schedules in Section 893.01, Florida Statutes, then upon the effective date of such rule, the provisions of this section addressed by the rule shall no longer be effective. Any violations of this section committed prior to the Florida Attorney General promulgating such rules may be prosecuted.
(j)
Enforcement and penalties.
(1)
This section shall be enforced by all law enforcement officers and code enforcement officers within their respective jurisdictions.
(2)
Any person violating any provision of this section shall be punished in accordance with the provisions of Chapter 8½ of the Broward County Code of Ordinances. In addition to, or in lieu of, the penalties provided in Chapter 8½ of the Broward County Code of Ordinances, any person violating any provision of this section may be prosecuted in accordance with Section 125.69, Florida Statutes, and upon conviction shall be punished by a fine not to exceed five hundred dollars ($500.00), or by imprisonment not to exceed sixty (60) days in the County jail, or by both such fine and imprisonment.
(3)
Any person who violates any provision of this section and is convicted, pleads guilty, pleads nolo contendere, or imposed civil penalties against, shall be ordered to pay all administrative fees and costs to the designated enforcement agency for the testing of the substance(s) collected and any other actual costs arising therefrom, as applicable to said violation.
(Ord. No. 2012-31, § 2, 10-23-12)