10-H-37 Illegal use of "Spice"ORDINANCE NO. 7.0-H-37
AN ORDINANCE AMENDING CHAPTER 3~1 OF THE CODE OF
ORDINANCES ADDING ARTICLE VI OF THE CITY OF SCHERTZ,
TEXAS BY ADDING AN OFFENSE FOR THE PURCHASE, SALE,
DELIVERY, OFFER OR GIFT OF ILLEGAL SMOKING MATERIALS;
THE USE OR POSSESSION OF ILLEGAL SMOKING MATERIAL; THE
USE OR POSSESSION OF ILLEGAL SMOKING MATERIAL
PARAPHERNALIA; PROVIDING AFFIRMATIVE DEFENSES TO
PROSECUTION; ESTABLISHING PENALTIES; PROVIDING FOR
REPEALING, SAVINGS AND SEVERABILITY CLAUSES; AND
PROVIDING FOR AN EFFECTIVE DATE
`YHEREAS, City Council has been infoi7ned by the Police Department that the American
Association of Poison Control Centers and the U. S. Department of Justice have publisl~ed articles and
opinions on the dangers and physiological effects of K2 and similar substances, which are believed to
pose a significant health concern to all persons, including the citizens of the City of Schertz; and
WHEREAS, the City of Scliez'tz Police and Fire Department officials have already responded to
at least four recent calls involving the ingestion of products marketed as "K2" or "Spice" or similar
products by young members of our community, whereby each had to be transported to the Hospital for
medical treatment; and
WHEREAS, based upon further information from the Sehe~tz Police Department, certain
substances designated as "synthetic cannabinoids" are sold under various names including but not limited
to: "K-2," "K-2 Summit," "K-2 Sex," "Genie," "Dascents," "Zohai," "Sage," "Spice," "Bence,"
"Smoke," "Skunk," "KO Hock-out 2," "Spice Gold," "Spice Diamond," "Yucatan Fire," "Solar Flare,"
"Pep Spice," "Fire N' Ice," "Blaze," "Red X Dawn," "Salvia Divinorutn" and "Salvnoria A" among
others and are likely to contain chemical compounds or otherwise cause effects similar to marijuana or
hallucinogens and may cause harmful effects by their use, and further the detrimental long-term effects of
which are not yet known; and
WHEREAS, the substances are not yet categorized as illegal controlled substances under state or
federal law; and
WHEREAS, the substances may he marketed as incense, but are commonly being used as an
alternative to marijuana; however, when smoked they have been known to have adverse side effects such
as elevated blood pressure, anxiety, pallor, numbness and tingling, vomiting, hallucinations, tremors and
seizures as documented by the National Drug intelligence Center of the U~uted States Department of
Justice in EWS Report 000006 issued May 18, 2010; and
WHEREAS, the City Council finds that the effects of these substances is a healti~ eonceri ro the
citizens of the City of Schertz; and
WHEREAS, the City Council has determined that it is in the best interest of the public health,
safety and welfare to prohibit the use, possession of and sale of these substances and the devices used to
ingest these substances; and
WHEREAS, the synthetic caunabinoids may be presented under a variety of street names but
share common ingredients, including JWH-18 and JWH-073; and
50359528-2 -1-
WHEREAS, the risk posed by these substances creates a danger to the public health and safety
that must be immediately addressed by the adoption of a local ordinance to protect the interests of the
citizens of the City of Schertz; and therefore
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS:
ARTICLE I,
Chapter 34, Health, is hereby amended to add Article VI, Secs. 34-110 through 34-120 (Illegal Smoking
Materials) to read as follows:
ARTICLE VI. ILLEGAL SMOHING MATERIALS
Sec. 34-110 Definitions
For the purpose of this article, the following words and phrases shall have the following
meanings.
(a) "Person" shall mean an individual, a group of two or more individuals,
proprietorship, corporation, partnership, association, wholesaler, retailer, or any
licensed or unlicensed business.
(b} "I11egaI Smoking Material", shall mean any plant or other substance, natural or
synthetic, whether described as tobacco, herbs, incense, spice or any blend thereof,
regardless of whether the substance is marketed for the purpose of being smoked,
which includes any one or more of the following substances or chemicals:
(1) Salvia divinoivm or salvinorin A-all pacts of the plant currently
classified botanically as salvia divinorum, whether growing or not, the
seeds thereof, any exhact from any part of such plant, and every
compound, manufacture, salts, derivative, mixture or preparation of
such plant, its seeds or extracts;
{2) 2[{1R,3S)-3-hydroxycyclohexyl]-5-(2-methyloctain-2-yl}phenol (also
known as CP47, 497) and homologues;
(3) (6aS, lOaS)-9-(hydroxymethyl}-b, 6-dimethyl-3-(2-methyloctain-2-
yl)-6a, 7, 10, l0a-tetrahydrobenzo[c]chromen-l-ol (also known as HU-
211 or Dexanabinol};
(4) 1-pentyl-3-(1-naphthoyl) indole (also known as JWH-018);
(5) 1-butyl-3(1-naphthoyl) indole (also known as J WII-073; or
(6} 1-pentyl-3-(4-methoxynaphthoyl}indole (also known as JWH-081).
Products containing some or all of the above substances are potentially marketed under,
but not limited to the following chemical names:
"K-2," "K-2 Summit," "K-2 Sex," "Genie," "Dascents," "Zohai," "Sage,"
"Spice," "Sence," "Smoke," "Skunk," "KO nock-out 2," "Spice Gold," "Spice
Diamond," "Yucatan Fire," "Solar Flare," "Pep Spice," "Fire N' Ice," "Blaze,"
"Red X Dawn," "Salvia Divinorum" and "Salvnoria A".
5035952$,2 -2-
Arry product containing any of the chemical compounds set fortis above shall be subject
io the provisions of this article, regardless of whether they are marketed render alternative
frames.
(c} "Illegal Smoking Material Paraphernalia" shall mean any paraphernalia, equipment
or utensil that is used or intended to be used in ingesting or inhaling illegal smoking
materials and may include, but is not limited to the following:
{1) a metal, wooden, acrylic, glass, stone, plastic, or ceramic pipe with or
without a screen, permanent screen, hasl~ish head, or punctured metal bowl;
(2) a eater pipe;
{3) a carburetion tube or device;
{4) a smoking or carburetiorr mask;
(5) a chamber pipe;
(b) a carburetor pipe;
(7) an electric pipe;
(S) an air-driven pipe;
(9) a chilhun;
(10) a bong; or'
(I l) an ice pipe or chiller'.
Sec.34-.1.1.1 Purpose.
The purpose of this article is to prohibit the manufacture, purchase, sale, offer for sale, delivery,
or gift of illegal smoking materials as deFined herein within the corporate limits of the City of Schertz,
and to prohibit the possession or use of illegal smoking materials and illegal smoking material
paraphernalia within the corporate limits of the City of Schertz. Any form of delivery, including without
limitation a simple gift, constitutes a violation of this article by all patties involved.
Sec. 34-112 Manufacture, Display, Purchase, Sell, Deliver, Offer, Barter, or• Give.
It shall be unlawful for any person to manufacture, purchase, sell, offer for sale, barter', publicly
display, deliver, or to give any illegal smoking material to any person within the corporate limits of the
City of Schertz.
Sec. 34-I13 Possession or Use of Illegal Smoking Materials.
It shall be unlawfitl for any person to have in his or her possession, or to use, inject, ingest, ir~lrale,
or otherwise introduce into the human body, illegal smoking materials within the corporate limits of the
City of Schertz,
Sec. 34-114 Possession or Use of Illegal Smoking Material Paraphernalia.
It shall be unlawful for any person to leave iu his or her possession any illegal smoking material
paraplter'nalia with the intent ro use it, to ingest, inhale or- othertivise consrune or introduce into the human
body illegal smoking material. It is a violation of this section if a person is found in possession of illegal
so3s~szs-z -3-
smoking material paraphernalia and appropriate forensic testing is done 6y the City or at its request on the
paraphernalia showing traces of illegal smoking material present on the paraphernalia.
Sec. 34-115 Affirmative Defenses to Prosecution.
It shall be art affirmative defense to prosecution for a violation of this article
{a) if the use of the illegal smoking material is at the direction or under a prescription issued by a licensed
physician or dentist authorized to prescribe controlled substances within the State of Texas.
(b) if an individual charged with a violation can provide proper and complete ltistoz'ic documentation that
the use of such materials is a portion of a religious undertaking or activity of a religious denomination in
which they have long standing historic membership supported by documentation from clergy or spiritual
leader recognized by the State of Texas.
{c) if the sale or possession of Salvinorin A was in conjunction with ornamental landscaping and used
solely for that purpose.
Sec. 34-116 Penalties.
(a) Any person, firm or corporation violating a provision of this article shall be guilty of a Class C
misdemeanor and shall, upon conviction, be subject to a fine of not less than one-hundred dollars
($100.00}, nor more than t~vo thousand dollars ($2,000.00).
{b) Itt addition to the fine, the City of Schertz shall be entitled to restitution for expenses incurred by it in
connection 4vith the testing of substances related to the fine. The restitution under this subsection (b) and
fine under {a) above together shall not exceed two thousand dollar's ($2,000.00).
(c) A violation constitutes a separate offense for each regulated item involved.
(d} A violation constitutes a separate offense for each day a violation continues.
{e) The penal provisions imposed under this article shall not preclude the City of Schertz from filing a
civil suit to enjoin the violation of this article. The City retains all legal rights and remedies available to
it pursuant to local, state and federal law."
Sec. 34-I17 tkrotrglt Sec. 34-120 Reserved. "
ARTICLE II.
1. All ordinance or resolutions or parts of ordinances or resolutions in conflict with the
provisions of this ordinance are hereby repealed to the extend of such conflict.
2. Should any section or part of any section or paragraph of this Ordinance be declared
invalid or unconstitutional for any reason, it shall not invalidate or impair the validity, force or effect of
any other section or sections or parts of a section or paragraph of this Ordinance.
3. The Code of Ordinances of the City of Schertz, 'fexas, as amended, shall remain iu full
force and effect, save and except as amended by this Ordinance.
54359528.2 -4 -
4. This Ordinance shall be effective inunediately upon its }passage and any publication
required by law.
PASSED Ai~1D APPROVED on fist reading this 7"' day of December, gala.
PASSED AND FINALLY APPROVED on second reading this 14`~'~t'ay of December, 2aio.
1 I3ald~vin, Mayor
ATT ST;
,~ t
rends Dennis, City Secretary
503595282 -5-