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HomeMy WebLinkAboutOrdinance #1194ORDINANCE NO. 1194 AN ORDINANCE AMENDING TITLE 7, CHAPTER 1 OF THE CANTON MQNICIPAL CODE BY ADDING THERETO SECTION 4 RELATING TO DRIIG PARAPHERNALIA AND CONTROL. WHEREAS, the Legal and Ordinance'Committee has determined that it is necessary and in the best interest of the City of Canton to amend Title 7, Chapter 1 of the Canton Municipal Code by adding thereto the following Section 4 relating to Drug Paraphernalia Control; and, WHEREAS, the State of Illinois has determined that any store, place, or premises from which or in which any item of drug paraphernalia is kept for sale, offered for sale, sold, or delivered for any commercial consideration is a public nuisance; and, WHEREAS, the Legal and Ordinance Committee has made a similar determination; and, WHEREAS, the Canton City Council has made similar determinations. NOW, THEREFORE, BE IT ORDAINED .BY THE CITY COUNCIL OF THE CITY OF CANTON, Fulton County, Illinois, as follows: 1. That the foregoing recitals are hereby found to be fact. 2. That Title 7, Chapter 1 of the Canton Municipal Code is hereby amended by adding thereto the following Section 4 to read as follows "DRDG PARAPHERNALIA CONTROL 7-1-4.1: As used in this Section 4, unless the context otherwise requires: (a) The term "cannabis" shall have the same meaning as if that definition werer incorporated herein. (b) The term "controlled substance" shall have the meaning ascribed to it in Section 102 of the "Illinois Controlled Substances Act", as if that definition were incorporated herein. (c) "Deliver" or "delivery" means the actual, constructive or attempted transfer of possession, with or without consideration, whether or not there is an agency relationship. (d) "Drug paraphernalia" means all equipment, products and materials of any kind which are peculiar to and marketed for use in planting, proagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhailing or otherwise introducing into the human body cannabis or a controlled substance in violation of the "Cannabis Control Act" or the "Illinois Controlled Substances Act". It includes, but is not limited to: (1) Kits peculiar to and marketed for use in manufacturing, compounding, converting, producing, processing or preparing cannabis or a controlled substance; (2) Isomerization devices peculiar to and marketed for use in increasing the potency of any species of plat which is cannabis or a controlled substance; (3) Testing equipment peculiar to and marketed for private home use in identifying or in analyzing the strength, effectiveness or purity of cannabis or controlled substances; (4) Diluents and adulterants peculiar to and marketed for cutting cannabis or a controlled substance by private persons; (5) Object peculiar to and marketed for use in ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, or hashish oil into the human body including, where applicable, the following items: (A) water pipes; (B) carburetion tubes and devices; (C) smoking and carburetion masks; (D) miniature cocaine spoons and cocaine vials; (E) carburetor pipes; (F) electric pipes; (G) air-driven pipes; (H) chillums; (I) bongs; (J) ice pipes or chillers; -2- (6) Any item whose purpose, as announced or described by the seller, is for use in violation of this Section 4. 7-1-4.2: SALE OR DELIVERY-PUBLIC NUISANCE. (a) Any person who keeps for sale, offers for sale, sells, or delivers for any commercial consideration any item which that person knows, or under all of the circumstances reasonably should have known, to be drug paraphernalia, commits a business offense. (b) Any store, place, or premises from which or in which any item of drug paraphernalia is kept for sale, offered for sale, sold, or delivered for any commercial consideration is declared to be a public nuisance. The City Attorney may commence an action in the circuit court, in the name of the City of Canton, to abate a public nuisance as described in this subsection (b). Upon being satisfied by affidavits or other sworn evidence that an alleged public nuisance exists the court may, without bond, enter a temporary restraining order to enjoin any defendant from maintaining such 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. If during the proceedings and hearings upon the merits the exitence of the nuisance is established, and it is established that such 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 permiting such nuisance and from using the premises for a period of one year thereafter. However an owner, lessee, or other occupant thereof may use such premises if the owner gives bond with sufficient security or surety, in an amount between $5,000.00 and $10,000.00 approved by the court, payable to the City of Canton. Such bond shall include a condition that no offense specified in this Section 8 shall be committed at, in, or upon the property described, and a condition that the principal obligor and surety assume responsibility for any fine, -3- costs, or damages incurred by any person resulting from such an offense. 7-1-4.3: EXEMPT ITEMS-DETERMINATION This Section 4 shall not apply to: (a) Items marketed for use 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; or (b) Items marketed for, or 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 4.1 of this Chapter marketed for decorative purposes, when such items have been rendered completely inoperable or incapable of being used for any illicit purpose prohibited by this Section 4. 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; -4- (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 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 City of Canton. 7-1-4.4: FORFEITURE AND SEIZURE OF PROPERTY (a) All drug paraphernalia is subject to forfeiture. (b) Property subject to forfeiture under this Section ~ ~. may be seized by any peace officer upon process issued by any court having jurisdiction over the property. Judgments in favor of the City of Canton in an Ordinance.... or forfeiture proceeding based upon this Section •ragainst a person's specific property shall serve as process authorizing a police officer to seize such property without further process. Seizure by a police officer may be made without process: (1) If there is probable cause to believe that the property is directly dangerous to health or safety and existing circumstances do not allow reasonable time for the officer to obtain lawful process; or (2) In accordance with the provisions of The Code of Criminal Procedure of 1963, as amended. (3) The presence of items which are deemed violative of this Section ~~or are otherwise subject to its forfeiture provisions in an inventory shall not subject the entire inventory to seizure or forfeiture. (c) Property taken or detained under this Section , shall not be subject to replevin, but is deemed to be in the custody of the law enforcement department or agency employing the seizing officer, subject only to the order and judgments of the circuit court having jurisdiction over the forfeiture proceedings. When property is seized under this Section 4~, the chief l -5- (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 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 City of Canton. 7-1-4.4: FORFEITURE AND SEIZURE OF PROPERTY (a) All drug paraphernalia is subject to forfeiture. (b) Property subject to forfeiture under this Section 4 may be seized by any peace officer upon process issued by any court having jurisdiction over the property. Judgments in favor of the City of Canton in an Ordinance.... or forfeiture proceeding based upon this Section 4 against a person's specific property shall serve as process authorizing a police officer to seize such property without further process. Seizure by a police officer may be made without process: (1) If there is probable cause to believe that the property is directly dangerous to health or safety and existing circumstances do not allow reasonable time for the officer to obtain lawful process; or (2) In accordance with the provisions of The Code of Criminal Procedure of 1963, as amended. (3) The presence of items which are deemed violative of this Section 4 or are otherwise subject to its forfeiture provisions in an inventory shall not subject the entire inventory to seizure or forfeiture. (c) Property taken or detained under this Section 4 shall not be subject to replevin, but is deemed to be in the custody of the law enforcement department or agency employing the seizing officer, subject only to the order and judgments of the circuit court having jurisdiction over the forfeiture proceedings. When property is seized under this Section 4, the chief -5- administrative officer of the seizing department or agency may place the property under seal, or remove the property to a place designated by him. (d) No disposition may be made of property under seal until the validity of the seizure has been determined in a Circuit Court, unless such court upon application therefor, orders the sale of perishable substances and the deposit of the proceeds of the sale with the Clerk of the Court. The Circuit Court shall rule on the validity of the seizure within 30 days after the seizure, unless a continuance is obtained by a person from whom the items were seized or a person who otherwise has standing to complain, or by the City of Canton for good cause shown. In no event shall a continuance be granted to the City of Canton pursuant to this Section 4 extend beyond 30 days. If judgment is entered in favor of the person from whom the property is seized, all seized property shall be returned immediately. Appeals from orders of the Circuit Court shall be heard within 60 days from the date judgment is entered. Judgments in favor of the person entitled to possession of the subject property shall serve as a mandate to the agency holding said property to return same forthwith. (e) When property is forfeited under this Section 4 the chief administrative officer of the seizing department or agency may retain it for official use, or forward it to the Bureau of Narcotics and Dangerous Drugs, United States Department of Justice, or its successor agency, for disposition. 7-1-4.5: LEGISLATIVE INTENT-INFERENCE OF LEGITIMACY This Section 4 is intended to be used solely for the suppression of the commercial traffic in items which, within the context of the sale or offering for sale, are clearly and beyond a reasonable doubt marketed for the illegal and unlawful use of cannabis or controlled substances. To this end all reasonable and common-sense inferences shall be drawn in favor of the legitimacy of any transaction or item. 7-1-4.6: PENALTY Any individual, firm, association or corporation violating any of the provisions of Section 4 of this Chapter shall, -6- upon conviction, be fined not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00), or, be incarcerated in a penal institution other than a penitentiary for a period of time not to exceed six(6) months, or, both. Each day or portion thereof that a violation is allowed to exist shall constitute a separate offense." 3. If any provisions, clause or phrase of this ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provisions or applications, and to this end the provisions of this ordinance are declared to be separable. 4. That this Ordinance shall be in full force and effect immediately upon its passage by the City Council of the City of Canton, Fulton County, Illinois, approval by the Mayor thereof, and publication in pamphlet form as provided by law. PASSED by the City Council of the City of Canton, Fulton County, Illinois at a regular meeting this ~ rd day of May 1988, upon a roll call vote as follows: AYES: Aldermen Kovachevich, Zilly, Steck, Sarff, Meade, May, Chapman, Bohler. NAYS: None. ABSENT: None. APPROVED: Donald E. Edwards, Mayor. ATTEST: r Nan y Whi s, City Clerk. -7- CITY OF CANTON ORDINANCE N0. 1194 ADOPTED BY THE CITY COUNCIL OF THE CITY OF CANTON THIS 3rd DAY OF May , 1988 Published in pamphlet form by authority of the City Council of the City of Canton, Fulton County, Illinois, this 3rd day of May , 19 88 STATE OF ILLINOIS, ) SS. COUNTY OF FULTON. ) I, the undersigned, certify that I am the duly elected and acting City Clerk of the City of Canton, Fulton County, Illinois. I further certify that on Mai, Ord 19~_, the Corporate Authorities of the aforesaid municipality passed and a proved the aforesaid Ordinance No. entitled AN ~RDINANCE AA4ENDING TITLE 7 CHAPTER 1 OF T~f~~ON MUNICIPAL which provided by its terms that it should be published in pamphlet form. The pamphlet form of the aforesaid Ordinance No. 1194 . including the Ordinance and a cover sheet thereof was prepared, and a copy of such Ordinance was posted in the City Building, 210 E. Chestnut Stt eet, Canton, Illinois, commencing on May 4th 19 8~ and continuing for at least ten (10) days thereafter. Copies of -such Ordinance were also available for public inspection upon request in the office of the City Clerk. DATED at Canton, Illinois this 4th day of Mav 19 88. ` C' y Clerk. ( S E A L)