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HomeMy WebLinkAboutA028 - Erie County Drug and smoking paraphernalia ordinance COUNTY OF ERIE LOCAL LAW NO:4.1980 ' ,PROPOSED LOCAL LAW PROHIBITS G. Whenever an employee of a-businqs DRUG AND SMOKING PARAPHERNALIA establishment, acting as an agent for the BE IT ENACTED BY THE ERIE COUNTY business establishment, is charged with a LEGJSt,ATLf`RE AS FOLLOWS: violation of this local law, there shell be.rebuttable presumption that the owner,, PNEAMBLEproprietor, operator, or manager of the establishment had knowledge of the acts of the TheeO-Erie County Legislature finds the, employee onagent and that contravention s id viois awi n was the growing and continued use of controlled sub- permitted stances and marijuana by some of the citizens said owner,proprietor,operator,or manager of of Erie County, especially minors, to be the establishment. detrimental to the health,safety and welfare of Section III the community. Moreover, the growing In determining whether there is a violation of development of shops and stores which openly this law,a court or other authority may con- display objects whose primary purposes are sider.in addition to all other logically revelant drug related,facilitates the illegal use of con- factors, the presence of any or all of thh trolled substances and marijuana. These shops following: and displays,by providing ready access to ob- - (1) Statements by an owner or by anyone jects which can be used in drug-related ways, in control of the object concerning its use: impute a false sense of legality to the use of (2) The proximity of the object,in time both controlled substances and marijuana. and space,to a direct violation of this Act; The Legislature further finds the availability (3) The proximity of the object to con- of smoking accessories and smoking herbs to trolled substances: minors to be an inducement to the tobacco, (4) The existence of any residue.of con- herb, hashish and marijuana smoking ex- trolled substances on the object; periences. As such,it is necessary in order to 15) Direct or circumstantial evidence of make the prohibition on the use of controlled the intent of an owner,or of anyone in con- substances, marijuana, and in the case of trol of the object,to deliver it to persons minors,tobacco,effective,for this Legislature whom he knows, or should reasonably to ban the possession, delivery, manufacture a violation of this intend to use the objectinn to facilice oftate and sale of drug paraphernalia. an Section 1 owner,or of anyone in control of the ob- DEFINITIONS - jest, as to a direct violation of this Law A. "Controlled substance"means any con- shall not prevent a finding that the object trolled substance as defined by subdivision five is adapted for use,or designed for use as of Sec.220.00 of the New York State penal law. Drug paraphernalia: B. The term "Drug Paraphernalia" shall (6) Instructions,oral or written,provided mean all equipment,products and materials of with the object concerning its use; any kind which are primarily used.adapted for (7) Descriptive materials accompanying use, or designed for use, in manufacturing, the object which explain or depict its use: compounding, converting, producing, (8) National and local advertising concer- processing, preparing, testing, analyzing, ning its use; packaging,repackaging,storing,containing, (9) The manner in which the object is concealing,.injecting, ingesting, inhaling, or displayed for sale; otherwise introducing into the human body a (101 Whether the owner,or anyone in con- controlled substance or marijuana as defined trol of the object,is a legitimate supplier of by Section 220.00(subd.5.and 6.)of the New like or related items to the community, York Penal Law. The term"Drug Parapher- such as a licensed distributor or dealer of nalia"as used herein does not include any item tobacco products; or substance of which knowing possession (11) Direct or circumstantial evidence of thereof would constitute a crime under Section the ratio of sales of the object to the total 220.50 of the Penal Law. sales of the business enterprise: C. "Marijuana"means marijuana or concen- U 2) The existence and scope of legitimate trated cannabis as defined by subdivision six of uses for the object in the community Sec.220.00 of the New York State penal law. (13) Expert testimony concerning its use. D. "Minor"means a person who has not at- Section IV tained the age of eighteen years. Sale of Smoking Accessories to a Minor. E. "Unlawfully"means in violation of Ar- A. It shall be unlawful to sell, barter, ex- ticle thirty-three of the Public Health Law. change,deliver or give away or cause to permit F. "Deliver"means to give or dispose of to or procure to be sold, bartered, exchanged, another,or to offer or agree to do the same. delivered,or given away smoking accessories to Section II _ any person under eighteen years of age. OFFENSES It shall be unlawful to sell, barter, ex A. Possession of Drug Paraphernalia change,deliver of give away or cause to permit It shall be unlawful for any person to use or procure to be sold, bartered, exchanged, or to possess with intent to use,drug parapher- delivered,or given away smoking herbs to any nalia,under circumstances evincing an intent personunder eighteen years of age. to use, to convert, produce,process,prepare, B. Any person under the age of eighteen who test,analyze,pack,repack,store,contain,con- presents, or offers to any vendor, or to the teal, ingest, inject, inhale or otherwise in- agent or employee of such vendor any written traduce into the human body a controlled sub- evidence of age which is false,fradulent or not stance or marijuana. actually his own for the purpose of purchasing B. Manufacture of drug paraphernalia. It or attempting to purchase any smoking ac- shall be unlawful for any person to knowingly cessory or herb shall be guilty of a violation. manufacture drug paraphernalia under circum- C. Warning to Minors. stances evincing an intent to use or under cir- Any person,firm,partnership,company or cumstances evincing knowledge that some per. corporation operating a place of business son intends to use the equipment,products or wherein smoking accessories and smoking materials for purposes of unlawfully manufac- herbs are sold or offered for sale,shall post in a turing, compounding, converting, producing, conspicuous place upon the premises a sign processing, preparing, testing, analyzing, upon which there shall be imprinted the packaging,containing,concealing,injecting, following statement,"SALE OF SMOKING ingesting, inhaling, or otherwise introducing ACCESSORIES AND SMOKING HERBS TO into the human body a controlled substance or PERSONS UNDER EIGHTEEN YEARS OF marijuana. AGE OR THE MISREPRESENTATION OF C. Delivery of drug paraphernalia. It shall AGE TO PROCURE SUCH A SALE IS be unlawful for any person to knowingly deliver PROHIBITED BY LAW." Such a sign shall to another drug paraphernalia under circum- be printed on a white card in red letters at least stances evincing an intent to use or under cir- one-half inch in height. cumstances evincing knowledge that some per- D. The sale of smoking accessories to a son intends to use the equipment,products or minor or of Drug Paraphernalia shall constitute materials for purposes of unlawfully manufac- evidence that such sale was permitted in con- turing, compounding, converting, producing, travention of this law by the person exercising processing, preparing, testing, analyzing, dominion or control over the business premises packaging,containing,concealing,injecting, in which the sale was made. ingesting,inhaling or otherwise introducing in- Section V co the human body a controlled substance or PENALTY marijuana. Any person found guilty of a violation of Sec- D. Sale of Drug Paraphernalia. It shall be tion 2(A)of this local law shall,for the first of- unlawful for any person to sell,or possess with fense,be guilty of a violation and shall be sub. intent to sell,or offer to sell,drug parapher- ject tq,a fine fixed by the court not exceeding nalia.under circumstances evincing an intent $260.00 or a term of imprisonment not ex- to use or under circumstances evincing ceeding fifteen days or-both. For each suc- knowledge that some person intends to use the ceeding offense,such person shall be guilty of a same to manufacture, compound, convert, Class A misdemeanor and shall be subject to a produce,process,prepare,test,analyze,pack, fine fixed by the court not exceeding$1,000 or repack, store,contain,conceal, inject, ingest, a term of imprisonment not exceeding one year inhale,or otherwise introduce into the human or both. body a controlled substance or marijuana. Any personfound guilty of a violation of Sec- E. This section does not apply to or govern tion 2(B)(C)or(D)of this local law shall be any matter,act,or omission controlled by Ar- guilty of a Class A misdemeanor. title 33 of the Public Health Law or Penal Law SEVERABILITY Section 260.20(Subd.5)This section shall not If any provisions of this law of the ap- be construed to prohibit any possession, plication thereof to any person or circumstan- manufacture, or use of hypodermics made ces is held invalid,the invalidity does not affect lawful by Section 220.45 of the Penal Law. other provisions or applications of the Law which can be given effect without the invalid F. Any drug paraphernalia used in violation provision or application, and to this end the of this section shall be seized by and forfeited to provisions of the Law are severable. the agent enforcing this law. 5.15.22