AN ORDINANCE BANNING THE
SOLE OF DRUG PARAPHERNALIA DESIGNED FOR USE WITH ILLEGAL DRUGS, AND POSSESSION
OF DRUG PARAPHERNALIA, AND PROVIDING PENALTIES.
THE CITY OF YAMHILL ORDAINS
AS FOLLOWS:
Section 1. Definitions.
(a) "Controlled substance"
means a drug or its immediate precursor classified in Schedules I thru V under
the Federal Controlled Substances Act, 21 U.S.C., sections 811 to 812, as modified
under ORS 475.035.
(b) "Deliver" or "delivery"
means the actual constructive, or attempted transfer, other than by administering
or dispensing from one Person or another of a controlled substance, whether
or not there is an agency relationship.
(c) The term "Drug paraphernalia"
means all equipment, products, and materials of any kind which are used, intended
for use, or designed for use, in planting, propagating, 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 in violation of the Controlled Substances
Act of this State. It includes, but is not limited to:
1) Kits used, intended
for use, or designed for use in Planting, propagating, cultivating, growing
or harvesting of any species of plant which is a controlled substance or from
which a controlled substance can be derived;
2) Kits used, intended
for use, or designed for use, in manufacturing, compounding, converting, producing,
processing, or preparing controlled substances;
3) Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance;
4) Testing equipment used,
intended for use, or designed for use in identifying, or in analyzing the strength,
effectiveness or purity of controlled substances;
5) Scales and balances
used, intended for use, or designed for use in weighing or measuring controlled
substances;
6) Diluents and adulterants,
such as quinine, hydrochloride, mannitol, mannite, deytrose and lactose, used,
intended for use, or designed for use in cutting controlled substances;
7) Separation gins and
sifters used, intended for use, or designed for use in removing twigs and seeds
from, or in otherwise cleaning or refining, marijuana;
8) Blenders, bowls, containers,
spoons and mixing devices used, intended for use, or designed for use in compounding
controlled substances;
9) Capsules balloons, envelopes
and other containers used intended for use or designed for use in packaging
small quantities of controlled substances;
10) Containers and other
objects used, intended for use, or designed for use in storing or concealing
controlled substances;
11) Hypodermic syringes,
needles and other objects used, intended for use, or designed for use in parenterally
injecting controlled substances into the human body;
12) Objects used, 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:
a. Metal, wooden, acrylic,
glass, stone, plastic, or ceramic pipes with or without screens, permanent screens,
hashish heads, or punctured metal bowls;
b. Water pipes;
c. Carburetion tubes and
devices;
d. Smoking and carburetion
masks;
e. 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 the hand;
f. Miniature cocaine spoons,
and cocaine vials;
g. Chamber pipes;
h. Carburetor pipes;
i. Electric pipes;
j. Air-driven pipes;
k. Chillums;
l. Bongs;
m. Ice pipes or chillers;
(d) "Marijuana" means all
parts of the plant Cannabis family Moraceae, whether growing or not, the resin
extracted from any part of the plant; and every compound, manufacture, salt,
derivative, mixture, or preparation of the plant or its 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, 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.
Section 2. Factors to be
Considered.
(a) In determining whether
an object is drug paraphernalia, a court or other authority should consider,
in addition to all other logical relevant factors, the following:
(1) Statements by an owner
or by anyone in control of the object concerning its use;
(2) Prior convictions,
if any, of an owner, or of any one in control of the object, under any Municipal,
State, or Federal law relating to any controlled substance;
(3) The proximity of the
object in time and space, to a direct violation of this ordinance or the State
Uniform Controlled Substance Act;
(4) The proximity of the
object to controlled substances;
(5) The existence of any
residue of controlled
substances to the object;
(6) 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 known intend to use the object to facilitate a
violation of Municipal or State Law; the innocence of an owner, or of anyone
in control of the object, as to a violation of this law or State law shall not
prevent a finding that the object is intended for use, or designed for use as
drug paraphernalia;
(7) Instructions, oral
or written, provided with the object concerning its use;
(8) Descriptive materials
accompanying the object which explain or depict its use;
(9) National and local
advertising concerning its use;
(10) The manner in which
the object is displayed for sale;
(11) Whether the owner,
or anyone in control of the object is a legitimate supplier of like or related
items to the community, such as a licensed distributor or dealer of tobacco
products;
(12) Direct or circumstantial
evidence of the ratio of sales of the object(s) to the total sales of the business
enterprise;
(13) The existence and
scope of legitimate uses for the object in the community;
(14) Expert testimony concerning
its use.
Section 3. Offenses and
Penalties.
(a) Possession of Drug
Paraphernalia.
(1) 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. Any person who violates this section is guilty of an infraction and upon and upon conviction may be fined not more than $100.
(b) Manufacture or Delivery
of Drug Paraphernalia.
(1) It is unlawful for
any Person to deliver, possess with intent to deliver, or manufacture with intent
to deliver, drug paraphernalia, knowing 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. Any
person who violates this section is guilty of all infraction and upon conviction
may be fined not more than $500.
(c) Delivery of Drug Paraphernalia
to a Minor.
(1) Any person eighteen
years of age or over who violates Section (b) by delivering drug paraphernalia
to a person under eighteen years of age who is at least three years his junior,
is guilty of a misdemeanor offense and upon conviction may be imprisoned for
not more than one year, fined not more than $2,500, or both.
(d) Advertisement of Drug
Paraphernalia.
(1) It is unlawful for
any person to place in any newspaper, magazine, handbill or other publication
any advertisement, knowing 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. Any person who violates this section is guilty of an infraction
and upon conviction may be fined not more than $200.
Section 4. Nuisance.
(a) Drug paraphernalia
are public nuisances. Any peace officer shall summarily seize any such paraphernalia
and shall deliver it to the chief of police, who shall hold it subject to the
order of the municipal court.
(b) Whenever it appears,
to the court that drug paraphernalia has been possessed in violation of this
ordinance, the court shall order the chief of police to destroy the paraphernalia.
Section 5. Infraction Procedure.
(a) A violation of Section
3(a), 3(b), or 3(d) is an
infraction. Citations shall be issued and court procedures followed that are
in accord with ORS 153.110 to 153.280.
Section 6. Severability.
(a) If any provision of
this ordinance or the application thereof to any person or circumstance is held
invalid, the invalidity does not affect other provisions or applications of
the ordinance which can be given effect without the invalid provision or application,
and to this end the provisions of this ordinance are severable.
EMERGENCY CLAUSE. The Council
desires and deems it necessary for the preservation of the health, safety and
peace of the City of Yamhill that this ordinance take effect at once, and therefore,
an emergency is hereby declared to exist and this ordinance shall be in full
force and effect from and after its passage and approval.
Passed by the Common Council this 11th day of October, 1989.