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81-8832 Controlled SubstanceE NUMBER 81-8832 (Published in The Salina Journal _ ', ti. ,, 3 1981) AN ORDINANCE RELATING TO DRUGS, DEFINING CERTAIN TERMS RELATED THERETO AND REGULATING DISPLAY OR SALE OF INSTRUMENTS USED FOR INHALING OR INGESTING CERTAIN CONTROLLED SUBSTANCES AND REGULATING THE DISPLAY AND SALE OF SIMULATED DRUGS AND SIMULATED CONTROLLED SUBSTANCES; CONTROL OF INSTRUMENTS USED FOR INHALING OR INGESTION OF CONTROLLED SUBSTANCES OR DRUGS AND CONTROL OF SIMULATED DRUGS AND SIMULATED CONTROLLED SUBSTANCES. WHEREAS, the Board of Commissioners of the City of Salina, Kansas, has determined and hereby finds that a problem exists within its territorial limits involving the exposure of children of elementary, junior high school and high school age to the use of drugs and controlled substances other than as authorized by law; and WHEREAS, the Board of Commissioners of the City of Salina, Kansas, has determined and hereby finds that the display and availability for sale of certain instruments hereinafter enumerated and simulated drugs and simulated controlled substances by the youth of the community by creating an atmosphere of apparent condonation by the community; and WHEREAS, the promotion and sale of products containing substances which may be harmless and inert in themselves, but which are packaged or designed to simulate controlled substances or drugs, are harmful in that they promote and encourage entry into the drug culture and foster respectability for drug use and abuse; and Section 1. That the Salina Code is hereby amended by adding the following sections: "Section 6-90. Definitions As used in this article: A. "Controlled substance" means any drug or substance included in Schedules I through V of the Uniform Controlled Substances Act found in Chapter 65, Article 41 of the Kansas Statutes Annotated. B. "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 supplement to any of them; 2. Substances intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or animals; 3. Substances (other than food) intended to affect the structure or any function of the body of man or animals; and 4. Substances intended for use as a component of any article specified in clause (1), (2) or (3) of this subsection. It does not include devices or their components, parts or accessories. WHEREAS, the Board of Commissioners of the City of Salina, Kansas, deems it to be in the best interests of the health, safety and welfare of its youth to make the use and abuse of drugs and controlled substances difficult by limiting the availability of necessary instruments within the City; NOW, THEREFORE, BE IT ORDAINED by the Board of Commissioners of the City of Salina, Kansas: Section 1. That the Salina Code is hereby amended by adding the following sections: "Section 6-90. Definitions As used in this article: A. "Controlled substance" means any drug or substance included in Schedules I through V of the Uniform Controlled Substances Act found in Chapter 65, Article 41 of the Kansas Statutes Annotated. B. "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 supplement to any of them; 2. Substances intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or animals; 3. Substances (other than food) intended to affect the structure or any function of the body of man or animals; and 4. Substances intended for use as a component of any article specified in clause (1), (2) or (3) of this subsection. It does not include devices or their components, parts or accessories. C. "Deliver" or "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. D. "Dangerous drug" means one that is unsafe for use except under the supervision of a practitioner because of its toxicity or other potentiality for human effect, method of use, or collateral measures necessary to use; "Dangerous Drugs" shall include all other drugs or compunds, preparations or mixtures thereof which the State Board of Health shall find and declare by rule or regulation duly promulgated after reasonable public notice and opportunity for hearing to have a dangerous hallucinogenic hypnotic, somnafacient or stimulating effect of the body of a human or animal. E. "Marijuana" means all parts of all varieties of the plant Cannabis, 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, or 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. I. By a practioner or his agent pursuant to a lawful order of a practitioner as an incident to his administering or dispensing of a controlled substance in the course of his professional practice; or 2. By a practitioner or by his authorized agent under his supervision for the purpose of or as an incident to research, teaching or chemical analysis or by a pharmacist or hospital as an incident to his or to its dispension of a controlled substance. G. "Patient" means as the case may be: 1. The individual for whom a drug is prescribed or to whom a drug is administered; or 2. 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 1 and 2 of this subsection is in good faith and in the course of professional practice only; H. "Person" means individual, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership or association or any other legal entity. F. "Manufacture" means the production, preparation, propogation, compounding, conversion or processing of a controlled substance either directly or indirectly 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 by an individual for his own use or the preparation, compounding, packaging or labeling of a controlled substance. I. By a practioner or his agent pursuant to a lawful order of a practitioner as an incident to his administering or dispensing of a controlled substance in the course of his professional practice; or 2. By a practitioner or by his authorized agent under his supervision for the purpose of or as an incident to research, teaching or chemical analysis or by a pharmacist or hospital as an incident to his or to its dispension of a controlled substance. G. "Patient" means as the case may be: 1. The individual for whom a drug is prescribed or to whom a drug is administered; or 2. 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 1 and 2 of this subsection is in good faith and in the course of professional practice only; H. "Person" means individual, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership or association or any other legal entity. I. "Pharmacist" means any individual currently licensed by the board to practice the profession of pharmacy in this state. J. "Practitioner" means a physician (M.D. or D.O.), dentist, podiatrist, veterinarian, scientific investigator or other person licensed, registered or otherwise authorized by law to administer and prescribe, use in teaching or chemical analysis, or conduct research with respect to a controlled substance in the course of professional practice and research. K. "Production" includes the manufacture, planting, cultivation, growing or harvesting of a controlled substance. L. "Prescription" means a written order, and in cases of emergency, a telephone order, issued by a practitioner in good faith in the course of his professional practice to a pharmacist for a drug for a particular patient, which specifies the date of its issue, the name and address of the patient (and, if such drug is prescribed for an animal, the species of such animal), the name and quantity of the drug prescribed, the directions for use of such drug, and the signature of such practitioner. M. "Somnifacient" and "stimulating" have the meaning attributable in standard medical lexicons. N. "Warehouseman" means a person who, in the usual course of business, stores drugs for others lawfully entitled to posess them and who has no control over the disposition of such drugs except for the purpose of such storage. 0. "Wholesaler" means a person engaged in the business of distributing drugs to persons engaged in the retail sale thereof. P. "Instrument" means a device designed for use, or intended for use in ingesting, smoking, administering or preparing marijuana, cocaine, phencycledine, opium or any derivative thereof, or any other controlled substance. For purposes of this subsection, the phrase "intended for use" shall refer to the intent of the person selling, offering to sell, dispensing, giving away or displaying the instrument herein defined. In determining whether an item constitutes an "instrument", a court may consider the following: (a) Whether a person or business establishment charged with violating this section is a licensed distributor or dealer of tobacco products under Chapter 79, Article 33 of the Kansas Statutes Annotated. (b) Expert testimony as to the principal use of the devices, articles or contrivances claimed to be instruments. (c) Evidence concerning the total business of a person or business establishment and the type of devices, articles, contrivances or items involved in the business. (d) National and local advertising concerning the use of the devices, articles, or contrivances claimed to be instruments. (e) Evidence of advertising concerning the nature of the business establishments. 1 1 1 Q. "Minor" shall mean any person who has not attained 18 years of age. R. "Premises open to minors" means any business establishment which sells its wares or merchandise to minors or which permits minors to enter into its place of business. S. "Simulated drugs" and "simulated controlled substances" are any product which identify themselves by using a common name or slang term associated with a controlled substance or indicate by label or accompanying promotional material that the product simulates the effect of a controlled substance or drug. T. "Place of display" means any museum, library, school or other similar public place upon which business is not transacted for a profit. U. "School" means any public or private elementary, junior high, or high school. V. "Close proximity" means within 500 feet of a stright line commencing at the property lines nearest to each other. W. "Premises" means a business establishment and the structure of which it is a part and facilities and appurtenances therein and grounds, areas and facilities held out for the use of patrons. "Section 6-91. Control of instruments used for inhaling or ingestion of controlled substances or drugs and control of simulated drugs and simulated controlled substances. Sec. 6-91(1). SaZe and dispZay prohibited. It shall be unlawful for any person, firm or corporation to sell, offer to sell, dispense, give away or display any instrument or simulated controlled substance or simulated drug in or upon any premises which: (a) are premises open to minors, unless the instruments, simulated controlled substances or simulated drugs are kept in such part of the premises that is not open to view by minors and to which minors do hot have access; or (b) are in close proximity to a school. Provided, however, that display of any such items at a place of display for educational or scientific purposes shall not be unlawful. Sec. 6-91(2). Nuisance. In addition to any penalty authorized by Section 1-8 of The Salina Code, a violation of Section 6-91 is hereby declared to be a public nuisance. "Section 6-92. Misrepresentation of aqe or display of false identification in order to view or purchase certain instruments used for inhaling or ingesting certain controlled substances or simulated drugs and simulated controlled substances by certain persons. Sec. 6-92(1). Misrepresentation of age prohibited. It shall be unlawful for a minor to represent that he or she is of the age of eighteen (18) years or over for the purpose of viewing, asking to view, purchasing, or obtaining by any means any instrument used for inhaling or ingesting certain controlled substances or simulated drugs or simulated controlled substances from any person whatsoever. Sec. 6-92(2). Display or presentation of false identification prohibited. It shall be unlawful for a person to display or present any false identification of any kind or nature which purports to show or represent that he or she is of lawful age for the purpose of viewing, purchasing or obtaining by any means any of the instruments or simulated drugs or simulated controlled substances described in the immediately preceding section to or from any person whatsoever. "Section 6-93. Attempting to purchase and/or possession of certain instruments used for inhaling or ingesting certain controlled substances or simulated drugs and simulated controlled substancesyb certain persons. Sec. 6-93(1). Attempting to purchase and/or posession by minors prohibited. It shall be unlawful for a minor to attempt to purchase, or to possess any instrument used for inhaling or ingesting certain controlled substances or to attempt to purchase, or to possess any simulated drug or simulated controlled substance from any person whatsoever." Section 2. Repeal. Any existing ordinances in conflict with the provisions of this ordinance are hereby repealed. Section 3. Take effect. This ordinance shall take effect and be in force from and after its adoption and publication in the official city newspaper. (SEAL) ATTEST: D. L. Harrison, City Clerk 1 Introduced: January 19, 1981 Passed:_ January 26, 1981 Z -1A Dan S. Geis, Mayor