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Home My WebLink About32762 / 84-02t First Reading February 16, 1984 (CARRIED PURPOSE: INITIATED BY: Second Reading March 1, 1984 I�� LAID OVER DRUG PARAPHERNALIA ORDINANCE COUNCILMEMBER KATHLEEN PROPP � 3 # 2 ORDINANCE WITHDRAWN ) A GENERAL ORDINANCE OF THE CITY OF OSHKOSH CREATING SECTION 18-16.2 OF THE OSHKOSH MUNICIPAL CODE PERTAINING TO THE REGULATION OF INSTRUMENTS USED FOR INHALING OR INGESTING CONTROLLED SUBSTANCES. The Common Council of the City of Oshkosh do ordain as follows: SECTION l. That Section 18-16.2 of the Oshkosh Municipal Code is hereby created to read as follows: 18-16.2 REGULATION OF INSTRUMENTS USED FOR INHALING OR INGESTING CONTROLLED SUBSTANCES (1) Intent. It is determined by the Common Council that the open display and availability for sale of simulated controlled substances and instruments used for inhaling or ingesting controlled substances in places of business within the City suggests and encourages the illegal use of drugs and other controlled sub- stances by the youth of this community; that to protect the health and safety and general welfare of the youth of this community it is necessary that the regulations herein provided be enacted. (2) Definitions as used in this section: (a) "Cocaine Spoon" is a spoon with a bowl so small that the primary use for which it is reasonably adapted or designed is to hold or administer cocaine, and which is so small as to be unsuited for the typical, lawful uses of a spoon. A cocaine spoon may or may not be merchandised on a chain and may or may not be labted as a"cocaine" spoon or "coke" spoon. (b) "Controlled Substance" means any drug, substance or immediate precursor enumerated in Schedules I through V of the Uniform Controlled Substances Act found in Chapter 161 of the Wisconsin Statutes, and as such Schedules may from time to time, be amended. (c) "Drug" means: 1. Substances recognized as drugs in the Official United States Pharmacopoeia, Official Homeopathic Pharmacopoeia of the United States or Official National Formulary or any supplementary to any of them. SUWITTiD HY APPR09ED - 5 - February 16, 1984 # 3 Cont'd. 2. Substances intended for use in the diagnosis, cure, medication, treatment or prevention of disease in man or animals. 3. Substances (other than food) intended to affect the structure of any function of the body of man or animals. 4. Substances intended for use as a component of any article specified in subsections l, 2, and 3, above. (d) "Drug Paraphernalia" means: l. All equipment, products and materials of any kind which are intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, con- verting, producing, processing, preparing, testing, analyzing, pack- aging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, as defined in subsection (2)(b), above. It includes, but is not limited to: (A) Kits intended for use, or designed for use, in planting, propagating, cultivating, growing or harvesting of any species of plar.t which is a controlled substance, or from which a controlled substance can be derived. (B) Kits intended for use, or designed for use, in manu- facturing, compounding, converting, producing, processing or preparing controlled substances. (C) Isomerization devices intended for use, or designed for use, increasing tfie potency of any species of plant which is a controlled substance. (D) Testing equipment intended for use, or designed for use, in identifying or in analyzing the strength, effective- ness or purity of controlled substances. (E) Scales and balances intended for use, or designed for use, in weighing or measuring controlled substances. (F) Diluents and adulterants, such as quinine hydrochloride, manitol, mannite, dextrose and lactose, intended for use, or designed for use, in cutting controlled substances. (G) Separation gins and sifters intended for use, or designed for use, in removing twigs and seeds from, or in otherwise cleaning or refining marijuana. — 6 — February 16, 1984 � 3 Cont'd. (H) Blenders, bowls, containers, spoons and mixing devices intended for use, or designed for use, in compounding controlled substances. (I) Capsules, balloons, envelopes and other containers intended for use, or designed for use, in packaging small quantities of con- trolled substances. (J� Containers and other objects intended for use, or designed for use, in storing or concealing controlled substances. (K) Objects intended for use, or designed for use, in ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish or hashish oil into the human body, such as: (i) Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes, with or without screens, permanent screens, hashish heads, or punctured metal bowls; (ii) Water pipes; (iii) Carburetion tubes and devices; (iv) Smoking and carburetion masks; (v) Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in ihe hand; (vi) Chamber pipes; (vii) Carburetor pipes; (viii) Electric pipes; (ix) Air-driven pipes; (x) Chillums; (xi) Bonds; (xii) Ice pipes or chillers; 2, 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: - 7 - Fehruary 16, 1984 # 3 Cont'd. (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 substance; (C) The proximity of the object, in time and space, to a direct violation of this act, or any state or federal law relating to any con- trolled substance; (D) The proximity of the object to controlled substances; (E) The existence of any residue of controlled substances on the object; (F) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows intend to use the object to facilitate a violation of this act, or any state or federal law relating to any controlled substance; the inno- cence of any owner, or of anyone in control of the object, as to a direct violation of such act or law, 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 con- cerning its use; (H) Descriptive materials accompanying the object which explain or depict its use; (I) National and local advertising concerning its use; (J) The manner in which the object is displayed for sale; (K) Direct or circumstantial evidence of the ratio of sales of the objects to the total sales of the business enterprise; (L) The existence and scope of legitimate uses for the object in the community; (M) Expert testimony concerning its "use" (e) "Marijuana or Hashish Pipe" means a pipe characterized by a bowl which is so small that the primary use for which it is reasonably adapted or designed is the smoking of marijuana or hashish, rather than lawful smoking tobacco, and which may or may not be equipped with a screen. (f) "Manufacturer" shall have the same meaning as given to it by Section 161.01(13) of the Wisconsin Statutes. (g) "Patient" means the individual for whom a drug is prescribed or for whom a drug is administered; or the owner or the agent of the owner of the animal for which a drug is prescribed or to which a drug is administered; provided that the prescribing or administering referred to in this subsection is in good faith and in the course of professional practice only. - 8 - Frebruary 16, 1984 # 3 Cont'd. (h) "Person" means any individual, corporation, business,trust, estate, partnership or association or any other legal entity. (i) "Practitioner" shall have the same meaning as given to it by Sec- tion 161.01(19) of the Wisconsin Statutes. (j) "Pharmacist" shall have the same meaning as given to it by Section 450.07(3) of the Wisconsin Statutes. (k) "Prescription" means a written order (or an oral order later reduced to writing) by a practitioner for a prescription drug for a particular patient which specifies the date of its issue, the name and address of such practitioner, the name and address of the patient and the name and quantity of the prescription drug prescribed, directions for use of the drug, and in case of a written order, the signature of the practioner. (1) "Simulated Drugs" and "Simulated Controlled Substances" are any pro- ducts which identify themselves by using a common name and slang term associated with the controlled substance or indicate by label or accompanying promotion material that the product simulates the effect of a controlled substance or drug. (m) "Wholesaler" shall have the same meaning as given to it by Section 450.07(3)(h) of the Wisconsin Statutes. (3) Sale and Display of Instruments and Simulated Controlled Substances Prohibited. (a) It shall be unlawful for any person to sell, offer for sale, display, furnish, supply or give away, any cocaine spoon, marijuana pipe, hashish pipe, simulated drugs or simulated controlled substances, or any drug paraphernalia. (b) Prohibition in this section shall not apply to: l. The display of any such items as a place of display for education or scientific purposes; 2. Manufacturers, wholesalers, pharmacists, practitioners engaged in the normal, lawful course of their respective business or professions, nor to patients possessing such materials pursuant to a valid prescription or suffering from diabetes or any other medical condition requiring self-injection, nor to warehousemen or their employees engaged in the lawful transportation of simulated controlled substances or instruments, nor to public officers or employees while engaged in the performance of their official duties. (c) Penalty. Any person violating this section shali forfeit not less than $100 nor more than $500.00 for the first offense and not less than $300.00 nor more than $500.00 for any succeeding offense or offense during the same calendar year, together with the costs of prosecution, and in default of payment thereof, shall be imprisoned in the Winnebago County jail until such fines and costs are paid. Such imprisonment shall not exceed ninety (90) days. Each day of the violation shall be considered a separate offense. - 9 - � � r., ` February 16, 1984 #3 Cont'd. (4) Construction; Severability. It is the legislative intent that all provisions and sections, clauses and sentences of this section be liberally con- strued, and should any provision, section, clause or sentence be held unconsti- tutional or invalid, such liolding shall not be construed as affecting the validity of any of the remaining provisions, sections, clauses, or sentences, it being the intent that this ordinance shall stand notwithstanding of the validity of any provision, section, clause or sentence. SECTION 2. That Section 1-5.1(a) of the Oshkosh Municipal Code pertaining to stipulation of guilt for ordinance violations is hereby amended as follows: Add Thereto SALE OF DRUG PARAPHERNALIA $100.00 SECTION 3• This ordinance shall be in full force and effect from and after its passage and publication. — 10 — T , � rJ ,�°s �'• <: i� �' N i �, C�' `-P < •a✓ � p � �• �-G '4 N � �N '�% � Q� '� � ..` .�G �cr o � O "d �� c'v. `�' S � ��• ��'i N YS ��- 6� � � `, � .. � at. 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