ORDINANCE NO.   7938

AN ORDINANCE OF THE CITY OF LAWRENCE, KANSAS ILLEGALIZING THE POSSESSION OF MARIJUANA AND DRUG PARAPHERNALIA.

NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF LAWRENCE, KANSAS:

Section  1.  Article 9 of Chapter 14 of the Code of the City of Lawrence, Kansas, 2003 Edition is hereby amended to read as follows:

Article 9.  Drugs and Drug Paraphernalia

14-901 Definitions.  For the purposes of this Article, the following words and phrases shall be defined as follows:

(A) Board means the Kansas Board of Pharmacy.

(B) Controlled Substance means any drug, substance, or immediate precursor included in any of the schedules designated in K.S.A. 65-4105, 65-4107, 65-4109, 65-4111 and 65-4113 and amendments to these sections.

(C) Deliver or delivery means the actual, constructive or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

(D) Drug Paraphernalia means all the equipment, products and materials of any kind 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 a controlled substance in violation of the Uniform Controlled Substances Act, K.S.A. 65-4101, et. seq, and amendments thereto.  Drug paraphernalia shall include but not be limited to the items listed in K.S.A. 65-4150(c) and its subsections, and amendments thereto.

(E) Immediate precursor means a substance which the board has found to be and by rule and regulation designates as being the principle compound commonly used or produced primarily for use and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail or limit manufacture.

(F) Isomer means all enantiomers and diastereomers.

(G) Marijuana means all parts of all varieties of the plant Cannabis whether growing or not, the seeds thereof, the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, or preparation of the plant, its seeds, or resin.  It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt or derivative mixture or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil, or cake of the sterilized seed of the plant which is incapable of germination.

(H) Simulated Controlled Substance means any product which identifies itself by a common name or slang term associated with a controlled substance and which indicates on its label or accompanying promotional material that the product simulates the effect of a controlled substance.

(I) Tetrahydrocannabinol means any material, compound, mixture, or preparation which contains any quantity of the synthetic equivalent of the substances contained in the plant, or in the resinous extractives of Cannabis, sp. and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as the following:  Delta 1 cis or trans tetrahydrocannabinol, and their optical isomers, Delta 6 cis or trans tetrahydrocannabinol, and their optical isomers, Delta 3,4 cis or trans tetrahydrocannabinol, and their optical isomers.  Compounds of these structures are covered, regardless of numerical designations of atomic positions, as are their salts, isomers, and salts of isomers.

14-902 Possession of Marijuana and THC.  Except as authorized by the Uniform Controlled Substance Act, K.S.A. 65-4101 et. seq., and amendments thereto, it shall be unlawful for any person to possess or have under such person’s control marijuana or tetrahydrocannabinol.

14-903. Possession of Drug Paraphernalia and Simulated Controlled Substances.

(A) No person shall use or possess with intent to use:

(1) Any simulated controlled substance.

(2) Any drug paraphernalia to use, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of the Uniform Controlled Substances Act, K.S.A. 65-4101 et. seq., and amendments thereto.

(B) No person shall deliver, possess with intent to deliver or cause to be delivered any drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to use, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of K.S.A. 65-4162, and amendments thereto.

(C) In determining whether an object is drug paraphernalia, the finder of fact shall consider, in addition to all other logically relevant factors, the following:

(1) Statements of the owner or person in control of an object concerning its use.

(2) Prior convictions, if any, of an owner or person in control of the object under any state or federal law relating to any controlled substance.

(3) The proximity of the object, in time and space, to a direct violation of the Uniform Controlled Substances Act, K.S.A. 65-4101 et. seq. and amendments thereto.

(4) The proximity of the object to controlled substances.

(5) The existence of any residue of controlled substances on the object.

(6) Direct or circumstantial evidence of the intent of an owner or person in control of an object, to deliver it to a person the owner or person in control of an object knows, or should reasonably know, intends to use the object to facilitate a violation of the Uniform Controlled Substances Act, K.S.A. 65-4101 et. seq., and amendments thereto.  The innocence of an owner or person in control of the object as to a direct violation of the Uniform Controlled Substances Act shall not prevent a finding that the object is intended for use as drug paraphernalia.

(7) Oral or written instructions provided with the object concerning its use.

(8) Descriptive materials accompanying the object which explain or depict its use.

(9) National and local advertising concerning the object’s use.

(10) The method and manner in which the object is displayed for sale, if applicable.

14-904 Penalties.

(A) Any person convicted of violating any of the provisions of this Article shall be punished by a fine not less than $200 or greater than $2500.  In addition to such fine, the convicted person may be sentenced to serve a jail term of not more than one year.

(B) If the court finds substantial and compelling reasons to do so, the court may suspend all or part of the minimum fine established by this section on such conditions as the court directs.  In making the determination regarding whether suspension of all or part of the minimum fine is within the interests of justice, the court shall consider, but is not limited to, the following factors.

1. The financial status of the defendant.

2. The amount of controlled substance or contraband possessed.

3. The lack of criminal history of the defendant.

4. Any drug treatment program voluntarily completed by the defendant before sentencing but subsequent to being charged under this article.

5. The defendant’s level of cooperation with law enforcement including the truthful identification of the source of the controlled substance or contraband possessed by the defendant. 

(C) Any person who is convicted of a charge alleging a violation of Section 14-902 of this Article shall be required by the Court to obtain a drug abuse evaluation.  Any person convicted of a violation of any other provision of this Article may be required by the Court to obtain a drug abuse evaluation.  Based upon the results of such evaluation, the Court may require the offender to attend and successfully complete a drug abuse education, counseling or treatment program.  Any drug abuse evaluation, counseling or treatment ordered under this section for a violation of Section 14-902 of this Article shall be substantially equivalent to the United States Department of Health and Human Services Substance Abuse and Mental Health Services Administration’s Brief Counseling for Marijuana Dependence

(D)  Any person who is diverted on a charge alleging a violation of Section 14-902 of this Article shall be required by the prosecutor to obtain a drug abuse evaluation.   Any person diverted on a charge alleging a violation of any other provision of this Article may be required by the prosecutor to obtain a drug abuse evaluation.  Based upon the results of such evaluation, the offender may be required to attend a drug abuse education, counseling or treatment program as a condition of such diversion agreement.  Any drug evaluation, counseling or treatment ordered under this section for a violation of Section 14-902 of this Article shall be substantially equivalent to the United States Department of Health and Human Services Substance Abuse and Mental Health Services Administration’s Brief Counseling for Marijuana Dependence

(E) The municipal judge shall order any person convicted of a charge alleging a violation of Section 14-902 of this Article to pay the laboratory analysis fees specified in K.S.A. 28-176, and amendments thereto, as additional costs in the case provided that forensic laboratory services are rendered or administered in conjunction with the case.  Any diversion agreement for a charge alleging a violation of Section 14-902 shall also contain a provision requiring the defendant to pay such laboratory analysis fees provided that forensic laboratory services are rendered in conjunction with the case.    

Section  2.   Severability.  If any section, clause, sentence, or phrase of this ordinance is found to be unconstitutional or is otherwise held invalid by any court of competent jurisdiction, it shall not affect the validity of any remaining parts of this ordinance.

Section 3.  Effective Date.  This ordinance shall take effect and be in full force and effect following its adoption and publication as provided by law.

Adopted this ________________ day of  ________________, 2006.

PASSED:

Dennis Highberger, Mayor

ATTEST:

Frank S. Reeb, City Clerk

APPROVED AS TO FORM AND LEGALITY:

David L. Corliss, Assistant City Manager

and Director of Legal Services