Ord. 1442 2011-01-10 - Supp 5ORDINANCE NO. 1442
AN ORDINANCE OF THE CITY OF PEARLAND, TEXAS, AMENDING
CHAPTER 20 OFFENSES AND MISCELLANEOUS PROVISIONS OF
THE CODE OF ORDINANCES OF THE CITY OF PEARLAND, TEXAS,
AND ADOPTING A NEWARTICLE VIII, ILLEGAL SMOKING PRODUCTS
AND INGESTION DEVICES TO PROHIBIT THE USE, PURCHASE,
POSSESSION AND SALE OF ILLEGAL SMOKING PRODUCTS
CONTAINING CERTAIN PLANT, PLANT PRODUCTS OR DERIVATIVES,
CHEMICAL COMPOUNDS APPLIED TO PLANTS, AND PLANT
PRODUCTS AND THEIR DERIVATIVES OR OTHER SUBSTANCES, AND
INGESTION DEVICES USED IN CONNECTION WITH THE ILLEGAL
SMOKING PRODUCTS, AND TO PROHIBIT THE USE, PURCHASE,
POSSESSION, AND SALE OF THE SYNTHETIC CANNABINOID
PRODUCTS; DISPENSING WITH A CULPABLE MENTAL STATE AND
PROVIDING A PENALTY; AND PROVIDING A REPEALER CLAUSE, A
SEVERABILITY CLAUSE, A SAVINGS CLAUSE, EMERGENCY CLAUSE
AND AN EFFECTIVE DATE.
WHEREAS, the City of Pearland, Texas, being a home rule city having authority to
utilize police power regulation for the health, safety and general welfare of the citizens of
the city; and
WHEREAS, the City Council of the City of Pearland, Texas, has been informed by
the Police Department that the American Association of Poison Control Centers and the
U.S. Department of Justice have published articles and opinions on the dangers and
physiological effects of K2 and similar substances, which are believed to pose a significant
health concern to the citizens of the City of Pearland; and
WHEREAS, the Pearland Police Department has already responded to at least two
recent calls involving the ingestion of products marketed as "K2" 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 Pearland Police Department,
certain substances are sold under various names including but not limited to: "K2 "K2
Summit "K2 Sex "K2 Ultra "K2 Blonde "K2 Citron "K2 Orisha "K2 Amazonian
Shelter "K2 Thai Dream "Genie "Dascents "Zohai "Sage "Spice "KO Knock- Out2
ORDINANCE NO. 1442
"Spice Gold "Spice Diamond", "Yucatan Fire "Yucatan Gold "Solar Flare "Pep Spice",
"Pat- Pourri "Bombay Blue "Hush "Swerve "Fire n' Ice "Salvia Divinorum "Salvinorin
A and °K -3" 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 long term effects are not yet know; and
WHEREAS, the substances are not yet categorized as illegal controlled substances
under state law; and
WHEREAS, the Council finds that the effect of these substances can be a health
concern to the citizens of Pearland; 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 and sale of these
substances and the devices used to ingest these substances; and
NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
PEARLAND, TEXAS, THAT:
Section 1. A new Article VIII, Illegal Smoking Products and Ingestion Devices of
Chapter 20, OFFENSES AND MISCELLANEOUS PROVISIONS is adopted to prohibit the
use, purchase, possession, sale and offering for sale of illegal smoking products and
ingestion devices to read in its entirety as follows;
"ARTICLE VIII. ILLEGAL SMOKING PRODUCTS AND INGESTION DEVICES
Purpose.
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ORDINANCE NO. 1442
The purpose of this article is to prohibit the use, possession, sale, ingestion or
smoking of illegal smoking products and ingestion devices hereinafter defined within the
city limits of the City of Pearland, Texas.
Sec. 20 -103. Definitions. The following words and phrases as used in this section shall
have the meanings as set forth in this subsection.
"Person" shall mean an individual, corporation, partnership, wholesaler, retailer or
any licensed or unlicensed business.
"Illegal Smoking Product" shall mean any plant or other 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 substances or chemicals:
(1) Salvinorin A: Contained within the Salvia Divinorum plant, whether growing or
not; or possessed as an extract, compound, manufacture, derivative,
mixture, or preparation of such plant;
(2) 2 -[(1 R, 3S)- 3— hydroxycyclohexyl� -5 —(2— methylocatan -2 —yl) phenol (also
known as CP 47, 497) and homologues;
(3) 1- Pentyi -3 -(1- naphthoyl) indole (also known as JWH -018); or
(4) Butyl -3 -(1- naphthoyl) indole (also known as JWH -073).
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ORDINANCE NO. 1442
"Ingestion Device" shall mean 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:
(1) a metal, wooden, acrylic, glass, stone, plastic, or ceramic pipe with or without
a screen, permanent screen, hashish head, or punctured metal bowl;
(2) a water pipe;
(3) a carburetion tube or device;
(4) a smoking or carburetion mask;
(5) a chamber pipe;
(6) a carburetor pipe;
(7) an electric pipe;
(8) an air driven pipe;
(9) a chillum,
(10) a bond, or
(11) an ice pipe or chiller.
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Sec. 20 -104. Violation.
(a) It shall be unlawful for any person to use, possess, purchase, barter, give,
publicly display, sell or offer for sale any illegal smoking product.
(b) It shall be unlawful for any person to use or possess an ingestion device with
the intent to inject, ingest, inhale or otherwise introduce into the human body
an illegal smoking product.
(c) The culpable mental state required by Chapter 6.02 of the Texas Penal Code
is specifically negated and dispensed with and a violation is a strict liability
offense.
(d) Any person, firm or corporation found to be violating any term or provision of
this Ordinance, shall be subject to a fine in accordance with Section 1 -11 of
the City Code of Ordinances for each offense. Every day a violation
continues shall constitute a separate offense.
Sec. 20 -105. Affirmative Defense.
(a) It shall be 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.
(b) It shall be an affirmative defense that the sale or possession of Salvinorin A
was in conjunction with ornamental landscaping and used solely for that
purpose."
ORDINANCE NO. 1442
Section 2. All provisions of the Code of Ordinances of the City of Pearland, codified
or uncodified, in conflict with the provisions of his Ordinance are hereby repealed, and all
other provisions of the Code of Ordinances of the City of Pearland, codified or uncodified,
not in conflict with the provisions of this Ordinance shall remain in full force and effect.
Section 3. It is hereby declared to be the intention of the City Council that the
sections, paragraphs, sentences, clauses, and phrases of this Ordinance are severable,
and if any phrase, clause, sentence, or section of this Ordinance shall be declared
unconstitutional or invalid by any court of competent jurisdiction, such unconstitutionality or
invalidity shall not affect any other remaining phrase, clause, sentence, paragraph or
section of this Ordinance.
Section 4. The repeal of any Ordinance or part of Ordinances effectuated by the
enactment of this Ordinance shall not be construed as abandoning any action now pending
under or by virtue of such Ordinance or as discontinuing, abating, modifying or altering any
penalty accruing or to accrue, or as affecting any rights of the municipality under any
section or provisions at the time of passage of this ordinance.
Section 5. This Ordinance shall become effective immediately upon its passage
and publication as required by law.
Section G Declaration of Emergency. The Council finds and determines that the
need to regulate illegal smoking products inures to the benefit of the public and, therefore,
bears directly upon the health, safety and welfare of the citizenry; and that this ordinance
shall be adopted as an emergency measure, and that the rule requiring this ordinance to
be read on two (2) separate occasions be, and the same is hereby waived.
ORDINANCE NO. 1442
PASSED and APPROVED this the 10 day of January, A.D., 2011.
=�Om H44-t
TOM REID
MAYOR
ATTEST:
i
VTY SE6#ETAR
APPROVED AS TO FORM:
D RRIN M. COKER
CITY ATTORNEY
VOTING RECORD SECOND AND FINAL READING
January 10 2011
Voting "Aye" Councilmembers Owens, Saboe, Sherman
Kyle, and Thompson.
Voting "No" None.
Motion passed 5 to 0.
PUBLICATION DATE: January 12, 2011
EFFECTIVE DATE: January 12, 2011
PUBLISHED AS REQUIRED BY SECTION 3.10 OF
THE CHARTER OF THE CITY OF PEARLAND, TEXAS
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