Ordinance No. 11,464ORDINANCE NO. 11,464
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AMENDING CHAPTER 66 "OFFENSES," ARTICLE III
"CONTROLLED SUBSTANCES ", SECTION 66 -56 "DEFINITIONS,"
SECTION 66 -57 "OFFENSE," AND SECTION 66 -59 "PROSECUTION
PROCEDURES" OF THE CODE OF ORDINANCES, BAYTOWN, TEXAS,
TO ADD DEFINITIONS OF "ILLEGAL SMOKING PRODUCT" AND
"INGESTION DEVICE" AND TO PROHIBIT THE USE, PURCHASE,
POSSESSION, AND SALE OF THE SYNTHETIC CANNABINOID KNOWN
OR SOLD UNDER SUCH NAMES AS "SPICE," "GENIE," "DASCENTS,"
"ZOHAI," "SAGE," "K -2" AND "KO KNOCK -OUT 2" FOR PUBLIC
HEALTH PURPOSES; PRESCRIBING A MAXIMUM PENALTY OF TWO
THOUSAND AND NO /100 DOLLARS ($2,000.00); PROVIDING A
REPEALING CLAUSE; CONTAINING A SAVINGS CLAUSE; AND
PROVIDING FOR THE PUBLICATION AND EFFECTIVE DATE THEREOF.
WHEREAS, the City Council of the City of Baytown, Texas has determined that certain
businesses within the City may be selling certain substances that when ingested produce
intoxicating effects similar to THC or marijuana; and
WHEREAS, the substances are not yet categorized as illegal controlled substances under
state or federal law; and
WHEREAS, the substances, which are described herein below, are often used as an
alternative to marijuana and are potentially dangerous to users and further, the long term effects
are not yet known; and
WHEREAS, it has been determined that the effects of these substances are a health
concern to the citizens of the City of Baytown; and
WHEREAS, the City Council of the City of Baytown, Texas, has determined that it is in
the best interest of the public health, safety and welfare to prohibit the substances; NOW,
THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, THAT:
Section l: That Chapter 66 "Offenses," Article III "Controlled Substances," Section 66-
56 "Definitions," of the Code of Ordinances of the City of Baytown, Texas, is hereby amended
to add definitions of "illegal smoking product' and "ingestion device" to read as follows:
CHAPTER 66. OFFENSES
ARTICLE M. CONTROLLED SUBSTANCES
Sec. 66 -56. Definitions.
The following words, terms and phrases, when used in this article, shall have the
meanings ascribed to them in this section, except where the context clearly indicates a different
meaning:
Illegal smoking product means any substance, 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 chemicals:
(a) Salviadivinorum or salvinorum A; all parts of the plant presently classified
botanically as salvia divinorum, whether growing or not, the seeds thereof, any
extract from any part of such plant, and every compound, manufacture, salts
derivative, mixture or preparation of such plant, its seeds or extracts;
(b) 2 -[(1R, 3S)- 3— hydroxycyclohexyl )- 5— (2— methylocatan -2 —yl) phenol (also
known as CP47, 497) and homologues;
(c) (6aS, IOaS) -9- (hydroxmethyl) -6, 6- dimethyl -3 -(2- methyloctan- 2- yl) -6a, 7, 10, 10
atetrahydrobenzo [c] chormen- I -ol) (also known as HU -211 or Dexanabinol);
(d) 1- Pentyl -3 -(1- naphthoyl) indole (also known as JWH -018); or
(e) Butyl -3 -(1- naphthoyl) indole (also known as JWH -073).
Ingestion device means equipment, a product or material that is used or intended for use
in ingesting, inhaling, or otherwise introducing an illegal smoking product into the human body,
including:
(a) a metal, wooden, acrylic, glass, stone, plastic, or ceramic pipe with or without a
screen, permanent screen, hashish head, or punctured metal bowl;
(b) a water pipe;
(c) a carburetion tube or device;
(d) a smoking or carburetion mask'
(e) a chamber pipe;
(f) a carburetor pipe;
(g) an electric pipe;
(h) an air - driven pipe;
(i) a chillum;
0) a bong; or
(k) an ice pipe or chiller.
Section 2: That Chapter 66 "Offenses," Article 111 "Controlled Substances," Section 66-
57 "Offense," of the Code of Ordinances of the City of Baytown, Texas, is hereby amended to
read as follows:
CHAPTER 66. OFFENSES
ARTICLE III. CONTROLLED SUBSTANCES
Sec. 66 -57. Offense.
(a) A person commits an offense if, with intent to acquire a prohibited substance, he
requests, commands or attempts to induce another to sell, donate or otherwise transfer or
deliver a prohibited substance.
(b) A person commits an offense if he uses, possesses, purchases, barters, gives, publicly
displays, sells or offers for sale any illegal smoking product.
(c) A person commits an offense if he uses or possesses an ingestion device with the intent to
inject, ingest, inhale or otherwise introduce into the human body an illegal smoking
product.
Section 3: That Chapter 66 "Offenses," Article 111 "Controlled Substances," Section 66-
59 "Prosecution procedures," of the Code of Ordinances of the City of Baytown, Texas, is
hereby amended to read as follows:
CHAPTER 66. OFFENSES
ARTICLE III. CONTROLLED SUBSTANCES
Sec. 66 -59. Prosecution procedures.
(a) Required. A person may not be convicted under section 66 -57(a) on the uncorroborated
testimony of the person allegedly solicited, unless the solicitation is made under
circumstances strongly corroborative of both the solicitation itself and the actor's intent
that the other person act on the solicitation.
(b) No defense. It is no defense to prosecution under this article that:
(1) No monetary or other consideration was tendered to the person solicited; or
(2) The person solicited was unable or unwilling to transfer or deliver a prohibited
substance.
(c) Affirmative defenses.
(1) It is an affirmative defense to any prosecution under section 66 -57(a) that:
a. the solicitation is made in furtherance of a transaction that would not
constitute a violation of any applicable law; or
b. the solicitation is made by a peace officer or federal law enforcement
officer in the lawful discharge of his duties or by a law enforcement agent
acting in the lawful discharge of an official duty.
(2) It is an affirmative defense for a person charged with an offense for possession or
use of an illegal smoking product that the use or possession was pursuant to the
direction or prescription of a licensed physician or dentist authorized to direct or
prescribe such act.
(3) It is an affirmative defense that the sale or possession of Salvinorin A was in
conjunction with ornamental landscaping and used solely for that purpose.
(4) It is an affirmative defense for a person charged with an offense for possession or
use of an illegal smoking product if the illegal smoking product was in the
possession of or being used by a governmental entity for a health purpose,
research and education, or a similar program.
Section 4: Any person who fails to comply with any provision of this ordinance shall
be guilty of a misdemeanor and, upon conviction, shall be punished by a fine not exceeding
TWO THOUSAND AND NO /100 DOLLARS ($2,000.00). Each act of violation and each day
upon which any such violation shall occur shall constitute a separate offense. In addition to the
penalty prescribed above, the city may pursue other remedies such as abatement of nuisances,
injunctive relief, administrative adjudication and revocation of licenses or permits.
Section 5: All ordinances or parts of ordinances inconsistent with the terms of this
ordinance are hereby repealed; provided, however, that such repeal shall be only to the extent of
4
such inconsistency and in all other respects this ordinance shall be cumulative of other
ordinances regulating and governing the sub ' ject matter covered by this ordinance. N m
othi"
contained herein shall be construed to conflict with the Je,wrs Conlmllce] Subsiance Aet, or ally
other state and/or federal law governing the saivic.
Section 6: It' any provision, section, exception, subsection, paragraph. sentence,
clause or phrase of this ordimance or the application of same to any person or the set of"
circumstances, shall lor any reason be held U11COIlStitUtiOlIal, Void Or irlValid, SLICII invalidity shall
not affect the validity of the remaining provisions of'this ordinance or their application to other
persons, or sets ofcircunistances and to this end all Provisions of this ordintince tire declared to he
severable.
Section 7: This ordinance sliall take effect front and after ten (10) (lays from its
passage by the C'ity Council. The City Clerk is hereby directed to give notice hercof'by CIALISing,
the caption of' this ordinance tcro be published in (lie official newspaper of the City of BaytoNwi at
least mice within ten (10) days aficr passage of" this ordinance,
INTRODUCF,T), READ and PASSf-T), 1)), the affirmative va te. of' the City COUIlCil of the
Clity ol'Baytown this the 10' day ol'October, 2010.
APPR(WED AS "YO FORNI:
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�14 SR- -'ily Attorney
-'NAC (' I AMIRL
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STYTJ ll-'I1 Tl-.-T)ONCARLOS,