G41-08 Ordinance No. G41-08
AN ORDINANCE
CREATING CHAPTER 10.25, ENTITLED
"DRUG PARAPHERNALIA CONTROL,"
OF THE ELGIN MUNICIPAL CODE, 1976, AS AMENDED
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS:
Section 1. That Title 10 of the Elgin Municipal Code, 1976, as amended, entitled "Public
Peace, Morals and Welfare," be and is hereby amended by creating Chapter 10.25, entitled,
"Drug Paraphernalia Control,"to read as follows:
SECTION:
10.25.010: Definitions
10.25.020: Unlawful to Use or Possess Drug Paraphernalia
10.25.030: Unlawful to Deliver or Manufacture Drug Paraphernalia with Intent to
Deliver
10.25.040: Unlawful to Advertise Drug Paraphernalia
10.25.050: Public Nuisance Declared
10.25.060: Exemptions
elk 10.25.070: Penalty
10.25.010: DEFINITIONS:
As used in this chapter, unless the context otherwise requires:
CANNABIS: Includes marijuana, hashish and other substances which are identified as
including any parts of the plant Cannabis Sativa, whether growing or not; the seeds
thereof, the resin extracted from any part of such plant; and any compound, manufacture,
salt, derivative, mixture or preparation of such plant, its seeds or resin, including
tetrahydrocannabinol (THC) and all other cannabinol derivatives, including its naturally
occurring or synthetically produced ingredients, whether produced directly or indirectly
by extraction, or independently by means of chemical synthesis or by a combination of
extraction and chemical synthesis; but shall not include the mature stalks of such plant,
fiber produced from such stalks, oil or cake made from the seeds of such plant, any other
compound, manufacture, salt, derivative, mixture or preparation of such mature stalks
(except therein extracted therefrom), fiber, oil or cake, or the sterilized seed of such plant
which is incapable of germination.
CONTROLLED SUBSTANCES: A drug, substance or immediate precursor in the
schedules of article II of the "Illinois Controlled Substance Act." 720 Illinois Compiled
Statutes 570/100 et seq., as amended.
DELIVER or DELIVERY: The actual, constructive or attempted transfer of possession,
with or without consideration, whether or not there is an agency relationship.
DRUG PARAPHERNALIA: All equipment, products and materials of any kind other
than methamphetamine manufacturing materials as defined in section 10 of the
"Methamphetamine Control and Community Protection Act," 720 ILCS 646/1 et seq. as
amended, which are used, or intended for use, in planting, 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 cannabis or a
controlled substance in violation of the "Cannabis Control Act," 720 Illinois Compiled
Statutes 550/1 et seq., as amended, or the "Illinois Controlled Substances Act," 720
Illinois Compiled Statutes 570/100 et seq., as amended or the "Methamphetamine
Control and Community Protection Act," as amended. It includes but is not limited to:
(A) Kits used or intended for use in planting, propagating, cultivating, growing or
harvesting of any species of plant which is a controlled substance or cannabis or
from which a controlled substance or cannabis can be derived;
(B) Kits used or intended for use in manufacturing, compounding, converting,
producing, processing or preparing cannabis or controlled substances;
(C) Isomerization devices used or intended for use in increasing the potency of
any species of plant which is cannabis or a controlled substance;
(D) Testing equipment used or intended for use in identifying or in analyzing the
strength, effectiveness or purity of cannabis or controlled substances;
(E) Scales and balances used or intended for use in weighing or measuring
cannabis or controlled substances;
(F) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite,
dextrose and lactose used or intended for use in cutting cannabis or controlled
substances;
G) Separation gins and sifters used or intended for use in removing twigs and
seeds from, or in otherwise cleaning or refining cannabis;
(H) Blenders, bowls, containers, spoons and mixing devices used or intended for
use in compounding cannabis or controlled substances;
(I) Capsules, balloons, envelopes and other containers used, or intended for use, in
packaging small quantities of cannabis or controlled substances;
(J) Containers and other objects used, or intended for use in storing or concealing
elk cannabis or controlled substances;
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(K) Hypodermic syringes, needles and other objects used, or intended for use, in
parenterally injecting cannabis or controlled substances into the human body;
(L) Objects used, or intended for use, in ingesting, inhaling or otherwise
introducing marijuana, cocaine, hashish, or hashish oil into the human body, such
as:
1. Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or
without screens, permanent screens, hashish heads or punctured metal
bowls;
2. Water pipes;
3. Carburetion tubes and devices;
4. Smoking and carburetion masks;
5. Roach clips, meaning objects used to hold burning material such as
marijuana cigarette that has become too small or too short to be held in the
hand;
rik6. Miniature cocaine spoons and cocaine vials;
7. Chamber pipes;
8. Carburetor pipes;
9. Electric pipes;
10. Air-driven pipes;
11. Chillums;
12. Bongs;
13. Ice pipes or chillers;
In determining whether an object is drug paraphernalia, a court should consider, in
addition to all other logically relevant factors, the following:
(A) Statements by an owner or by anyone in control of the object concerning its
use;
(B) Prior convictions, if any, of an owner or of anyone in control of the object,
under any State or Federal law relating to any controlled substance or cannabis;
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(C) The proximity of the object in time and space to a direct violation of this
chapter;
(D) The proximity of the object to cannabis or controlled substances;
(E) The existence of any residue of cannabis or controlled substances on the
object;
(F) Direct or circumstantial evidence of the intent of an owner or anyone in
control of the object, to deliver it to persons whom he knows intend to use the
object to facilitate a violation of the "Cannabis Control Act," 720 Illinois
Compiled Statutes 550/1 et seq., as amended, or the "Illinois Controlled
Substances Act," 720 Illinois Compiled Statutes 570/100 et seq;, as amended, the
innocence of an owner or of anyone in control of the object as to a direct violation
of the "Cannabis Control Act," 720 Illinois Compiled Statutes 550/1 et seq., as
amended, or the "Illinois Controlled Substances Act," 720 Illinois Compiled
Statutes 570/100 et seq., as amended, shall not prevent a finding that the object is
used or intended for use as drug paraphernalia.
(G) Instructions, oral or written, provided with the object concerning its use;
(H) Descriptive materials accompanying the object which explain or depict its
use;
(I)National and local advertising concerning its use;
(J) The manner in which the object is displayed for sale;
(K) 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;
(L) Direct or circumstantial evidence of the ratio of sales of the object(s) to the
total sales of the business enterprise;
(M) The existence and scope of legitimate uses for the object in the community;
(N) Expert testimony concerning its use.
MANUFACTURE: The production, preparation, propagation, compounding, conversion
or processing of cannabis or controlled substances, 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 cannabis or controlled substances or labeling of its
container, except that this term does not include:
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(A) By an ultimate user, the preparation or compounding of a controlled
substance for his own use; or
(B) By a practitioner, or his authorized agent under his supervision, the
preparation, compounding, packaging or labeling of a controlled substance;
1. As an incident to his administering or dispensing of a controlled
substance in the course of his professional practice; or
2. As an incident to lawful research, teaching or chemical analysis and not
for sale.
PERSON: Any individual, corporation, government or governmental subdivision or
agency, business trust, estate, trust, partnership or association, or any other entity.
PRODUCE or PRODUCTION: Planting, cultivating, tending or harvesting.
10.25.020: UNLAWFUL TO USE OR POSSESS DRUG PARAPHERNALIA:
A. 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
cannabis or controlled substance in violation of the "Cannabis Control Act," 720
Illinois Compiled Statutes 550/1 et seq., as amended, or the "Illinois Controlled
Substances Act" 720 Illinois Compiled Statutes 570/100 et seq., as amended. This
subsection A shall not apply to a person who is legally authorized to possess
hypodermic syringes or needles under the "Hypodermic Syringes and Needles
Act," 720 Illinois Compiled Statutes 635/1 et seq., as amended.
B. In determining intent under subsection A, the trier of fact may take into
consideration the proximity of the cannabis or controlled substances to drug
paraphernalia or the presence of cannabis or a controlled substance on the drug
paraphernalia.
10.25.030: UNLAWFUL TO DELIVER OR MANUFACTURE DRUG
PARAPHERNALIA WITH INTENT TO DELIVER:
It is unlawful for any person to deliver, possess with intent to deliver, or manufacture
with intent to deliver, drug paraphernalia, knowing, or under circumstances where one
should reasonably know, 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
cannabis or a controlled substance in violation of the "Cannabis Control Act," 720
Illinois Compiled Statutes 550/1 et seq., as amended, or the "Illinois Controlled
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Substances Act," 720 Illinois Compiled Statutes 570/100 et seq., as amended. This
subsection A shall not apply to a person who is legally authorized to manufacture,
possess, keep for sale, offer for sale or sell hypodermic syringes or needles under the
"Hypodermic Syringes and Needles Act," 720 Illinois Compiled Statutes 635/1 et seq., as
amended.
10.25.040: UNLAWFUL TO ADVERTISE DRUG PARAPHERNALIA:
It is unlawful for any person to place in any newspaper, magazine, handbill or other
publication any advertisement, knowing, or under circumstances where one should
reasonably know, that the purpose of the advertisement, in whole or in part, is to promote
the sale of objects used or intended for use as drug paraphernalia.
10.25.050: PUBLIC NUISANCE DECLARED:
Any store, place, or premises from which or in which any item of drug paraphernalia is
kept for sale, offered for sale, sold, manufactured, possessed with intent to deliver, or
delivered for any commercial consideration, is declared to be a public nuisance.
A. Whenever the city manager or the city manager's designee reasonably believes
that any premises constitutes a public nuisance as described in this section, the
city manager or such designee may bring an action to abate the nuisance in a court
of competent jurisdiction or in the city's division of administrative hearings.
B. Upon being satisfied by affidavits or other sworn evidence that an alleged public
nuisance exists, the presiding authority may, without bond, enter a temporary
restraining order to enjoin any defendant from maintaining the nuisance and may,
without bond, enter a preliminary injunction restraining any defendant from
removing or interfering with any property used in connection with the public
nuisance.
C. If during the proceedings and hearings upon the merits the existence of the
nuisance is established, and it is established that the nuisance was maintained with
the intentional, knowing or reckless permission of the owner, or an agent of the
owner managing the premises, the court shall enter an order restraining all
persons from maintaining or permitting the nuisance and from using the premises
for a period of one year thereafter. However an owner, lessee, or other occupant
thereof may use the premises if the owner gives bond with sufficient security or
surety, in an amount between $5,000 and $10,000 approved by the court, payable
to the "City of Elgin." The bond shall include a condition that no offense
specified in this chapter shall be committed at, in, or upon the property described,
and a condition that the principal obligor and surety assume responsibility for any
fine, costs, or damages incurred by any person resulting from such an offense.
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10.25.060: EXEMPTIONS:
This chapter shall not apply to:
A. Items used in the preparation, compounding, packaging, labeling, or other use of
cannabis or a controlled substance as an incident to lawful research, teaching, or
chemical analysis and not for sale.
B. Items historically and customarily used in connection with, the planting,
propagating, cultivating, growing, harvesting, manufacturing, compounding,
converting, producing, processing, preparing, testing, analyzing, packaging,
repackaging, storing, containing, concealing, injecting, ingesting, or inhaling of
tobacco or any other lawful substance.
Items exempt under this subsection include, but are not limited to, garden hoes,
rakes, sickles, baggies, tobacco pipes, and cigarette-rolling papers.
C. Items listed in section 10.25.010 of this chapter which are used for decorative
purposes, when such items have been rendered completely inoperable or
incapable of being used for any illicit purpose prohibited by this chapter.
D. A person who is legally authorized to possess hypodermic syringes or needles
under the "Hypodermic Syringes and Needles Act," 720 Illinois Compiled
Statutes 635/1 et seq., as amended.
In determining whether or not a particular item is exempt under this subsection, the trier
of fact should consider, in addition to all other logically relevant factors, the following:
1. The general, usual, customary, and historical use to which the item involved
has been put;
2. Expert evidence concerning the ordinary or customary use of the item and the
effect of any peculiarity in the design or engineering of the device upon its
functioning;
3. Any written instructions accompanying the delivery of the item concerning the
purposes or uses to which the item can or may be put;
4. Any oral instructions provided by the seller of the item at the time and place of
sale or commercial delivery;
5. Any national or local advertising concerning the design, purpose or use of the
item involved, and the entire context in which such advertising occurs;
6. The manner, place and circumstances in which the item was displayed for sale,
as well as any item or items displayed for sale or otherwise exhibited upon the
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premises where the sale was made;
7. 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;
8. The existence and scope of legitimate uses for the object in the community.
10.25.070: PENALTY:
Violation of any section of this chapter shall, upon conviction, be punishable by a fine of
not less than one thousand dollars ($1,000.00).
Section 2. Severability. If any provision, clause, sentence, paragraph, section or part of
this ordinance or application thereof to any person or circumstance, shall for any reason be
adjudged by a court of competent jurisdiction to be unconstitutional or invalid, said judgment
shall not affect, impair or invalidate the remainder of this ordinance and the application of such
provision to other persons or circumstances, but shall be confined in its operation to the
provision, clause, sentence, paragraph, section or part thereof directly involved in the
controversy in which such judgment shall have been rendered and to the person or circumstances
involved. It is hereby declared to be the legislative intent of the City Council that this ordinance
would have been adopted had such unconstitutional or invalid provisions, clause, sentence,
��r► paragraph, section or part thereof not been included.
Section 3. That all ordinances or parts of ordinances in conflict with the provisions of
this ordinance be and are hereby repealed.
Section 4. That this ordinance shall be in full force and effect upon its passage and
publication in the manner provided by law.
C410eZ
Ed Schock, Mayor
Presented: June 25, 2008
Passed: June 25, 2008
Omnibus Vote: Yeas: 7 Nays: 0
Recorded: June 26, 2008
Published: June 27, 2008
Attest:
Diane Robertson, Cit Clerk
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