§ 21-22. Sale, offer for sale, purchase with intent to sell and public display for sale of synthetic cannabinoid herbal incense prohibited.

(a)

Purpose and intent. The Miami-Dade County Board of County Commissioners finds and declares that the products and synthetic substances described hereunder are commonly used as alternatives to marijuana. The Board further finds that these synthetic substances are particularly appealing to youth, and that these synthetic substances are potentially dangerous to users in the short term and that the long term effects are not yet known. The Board finds that the products which contain these synthetic substances often use a disclaimer that the product is "not for human consumption" to avoid regulations requiring the manufacturer to list the product's active ingredients. The Board finds drug designers and chemists can quickly create new synthetic drugs once federal or state law makes a particular synthetic drug illegal. As such, the Board finds there is a need to declare illegal the sale, offer for sale, purchase with intent to sell and public display for sale of synthetic substances that mimic illegal controlled substances that have not yet themselves been categorized as illegal controlled substances under federal or state law. The Board further finds that it is proper and necessary for the Board to exercise its authority to safeguard and protect the public health, safety and welfare by taking this action.

(b)

Application. This section shall be applicable in the incorporated and unincorporated areas of Miami-Dade County, with the enforcement of the provision of this section in the unincorporated area being the responsibility of Miami-Dade County and in the incorporated area being the responsibility of the respective municipalities.

(c)

Preemption. This section shall not preempt any municipal ordinance governing this subject area that is more stringent than this ordinance or that declares illegal a substance that is not declared illegal by this ordinance.

(d)

Definitions. For purposes of this section, the following terms apply:

(1)

Structurally similar as used in this section shall mean chemical substitutions off a common chemical backbone associated with synthetic cannabinoids, synthetic cannabinoid-mimicking compounds, 2-[(1R, 3S)-3-hydroxycyclohexyl]-5- (2-methyloctan-2-yl) phenol, also known as CP 47,497 and its dimethyloctyl (C8) homologue, (6aR, 10aR) -9- (hydroxymethyl) -6, 6-dimethyl-3- (2-methyloctan-2-yl) -6a, 7, 10, 10a-tetrahydrobenzo [c] chromen-1-ol, also known as HU-210, 1-Pentyl-3- (1-naphthoyl) indole, also known as JWH-018, 1-Butyl-3- (1-naphthoyl) indole, also known as JWH-073, 1-[2-(4-morpholinyl)ethyl]-3-(1- naphthoyl)indole, also known as JWH-200, JWH-007 (1-pentyl-2-methyl-3-(1-naphthoyl)indole), JWH-015 (2-Methyl-1-propyl-1H-indol-3-yl)-1- naphthalenylmethanone), JWH-019 (Naphthalen-1-yl-(1-hexylindol-3-yl)methanone), JWH-020 (1- heptyl-3-(1-naphthoyl)indole), JWH-072 (Naphthalen-1 -yl-(1-propyl-1H-indol-3-yl)methanone), JWH-081 (4-methoxynaphthalen-1-yl-(l-pentylindol-3-yl)methanone), JWH-122 (1-Pentyl-3-(4-methyl-1-naphthoyl)indole), JWH-133 ((6aR, 10aR)-3-(1,1-Dimethylbutyl)-6a.,7,10,10a-tetrahydro-6,6,9-trimethyl-6H-dibenzo[b,d]pyran)), JWH-175 (3-(naphthalen-1-ylmethyl)-1-pentyl-1H-indole), JWH-201 (1-pentyl-3-(4-methoxyphenylacetyl)indole), JWH-203 (2-(2- chlorophenyl)-1-(1-pentylindol-3-yl)ethanone), JWH-210 (4-ethylnaphthalen-1-yl-(1-pentylindol-3-yl)methanone), JWH-250 (2-(2-methoxyphenyl)-1-(1-pentylindol-3-yl)ethanone), JWH-251 (2-(2-methylphenyl)-1-(1-pentyl-1H-indol-3-yl)ethanone), JWH-302 (1-pentyl-3-(3-methoxyphenylacetyl)indole), JWH-398 (1-pentyl-3-(4-chloro-1-naphthoyl)indole), HU-211 ((6aS, 10aS)-9-(Hydroxymethyl)-6,6-dimethyl-3 -(2-methyloctan-2-yl)-6a,7,10,10a-tetrahydrobenzo[c]chromen-1-ol), HU-308 ([(1R,2R,5R)-2-[2,6-dimethoxy-4-(2-methyloctan-2-yl)phenyl]-7,7-dimethyl-4-bicyclo[3.1.1]hept-3-enyl] methanol), HU-331 (3-hydroxy-2-[(1R,6R)-3-methyl-6-( 1-methylethenyl)-2-cyclohexen-1-yl]-5-pentyl-2,5-cyclohexadiene-1,4-dione), CB-13 (Naphthalen-1-yl-(4-pentyloxynaphthalen-1-yl)methanone), CB-25 (N-cyclopropyl-11-(3-hydroxy-5-pentylphenoxy)-undecanamide), CB-52 (N-cyclopropyl-11-(2-hexyl-5-hydroxyphenoxy)-undecanamide), CP 55,940 (2-[(1R,2R,5R)-5- hydroxy-2-(3hydroxypropyl)cyclohexyl]-5-(2-methyloctan-2-yl)phenol), AM-694 (1-[(5-fluoropentyl)-1H-indol-3-yl]-(2-iodophenyl)methanone), AM-2201 (1-[(5- fluoropentyl)-1H-indol-3-yl]-(naphthalen-1-yl)methanone), RCS-4 ((4-methoxyphenyl)(1-pentyl-1H-indol-3-yl)methanone), RCS-8 (1-(1-(2-cyclohexylethyl)-1H-indol-3-yl)-2-(2-methoxyphenylethanone), WIN55,212-2 ((R)-(+)-[2,3-Dihydro-5-methyl-3-(4-morpholinylmethyl)pyrrolo[1,2,3-de]-1,4- benzoxazin-6-yl]-1-naphthalenylmethanone), WIN55,212-3 ([(3S)-2,3-Dihydro-5-methyl-3-(4-morpholinylmethyl)pyrrolo[1,2,3-de]-1,4-benzoxazin-6-yl]-1-naphthalenylmethanone), or related salts, isomers, and salts of isomers, listed in the controlled substance schedules in Chapter 893, Florida Statutes, as amended, or otherwise prohibited by federal or state law.

(2)

Synthetic cannabinoid herbal incense as used in this section shall mean aromatic or nonaromatic plant material containing a synthetic drug, or to which a synthetic drug has been sprayed, applied or otherwise added, that is distributed in a loose, leafy, powder or granular form or in a compressed block or blocks that can be crushed to result in a powder or granular form, and can be placed into a pipe, cigarette paper or drug paraphernalia for purposes of ingestion by smoking, inhaling or other method, regardless of whether the substance is marketed as not for the purpose of human consumption, and regardless of how the substance is labeled, including, but not limited to, insect repellant, plant food, herbs, incense, nutrient, dietary supplement or spice.

(3)

Synthetic drug as used in this section shall mean any chemical or mixture of chemicals, however packaged, that is structurally similar to synthetic cannabinoids, synthetic cannabinoid-mimicking compounds or any other substance listed in paragraph (1) above, or related salts, isomers, or salts of isomers, as listed in the controlled substance schedules in Chapter 893, Florida Statutes, or otherwise prohibited by federal or state law, as such may be amended from time to time. "Synthetic drug" also shall include any chemical or mixture of chemicals, however packaged, that mimics the effects of tetrahydrocannabinol (also known as THC), the main active ingredient found in marijuana or any other substance listed in paragraph (1) above, or related salts, isomers, or salts of isomers, as Packaging that indicates or implies that a product mimics the effects of marijuana, such as "fake weed" or "fake pot" or any other substance listed in paragraph (1) above, shall create a presumption that the product mimics the effects of tetrahydrocannabinol. "Synthetic drug" shall not include any substance currently listed in the controlled substance schedules in Chapter 893, Florida Statutes, or otherwise prohibited by federal or state law, as such may be amended from time to time.

(e)

Sale, offer for sale and purchase with intent to sell synthetic cannabinoid herbal incense prohibited. It shall be unlawful for any store owner, store manager, store purchasing agent or other person to sell, offer for sale or purchase with intent to sell any synthetic cannabinoid herbal incense as defined herein.

(f)

Public display for sale of synthetic cannabinoid herbal incense prohibited. It shall be unlawful for any store owner, store manager, store purchasing agent or other person to publicly display for sale any synthetic cannabinoid herbal incense as defined herein.

(g)

Affirmative defense. It shall be an affirmative defense to prosecution of a violation of this section if the sale, offer for sale or public display for sale of synthetic cannabinoid herbal incense is pursuant to the direction or prescription of a licensed physician or dentist authorized in the State of Florida to direct or prescribe such act.

(h)

Seizure and destruction of synthetic cannabinoid herbal incense. Synthetic cannabinoid herbal incense prohibited herein may be seized by law enforcement officers and may be destroyed in the same manner used to destroy narcotics and contraband substances, after its use for evidentiary purposes in any judicial proceeding is no longer required.

(i)

Injunctive relief. Miami-Dade County shall have the authority to seek an injunction against any person or business violating the provisions of this section. In any action seeking an injunction, Miami-Dade County shall be entitled to collect its enforcement expenses, including forensic costs, law enforcement costs and reasonable attorney fees and costs incurred at trial and on appeal.

(j)

Subsequent federal or state action. If Congress or a federal agency amends federal law to include a particular substance or otherwise enacts or amends a federal law providing for criminal penalties for the prohibitions of substances set forth in this ordinance, then upon the effective date of such enactment or amendment, the provisions of this ordinance addressed by federal law shall no longer be deemed effective. Any violations of this ordinance committed prior to the Congress or a federal agency enacting a federal law may be prosecuted.

If the Florida Legislature amends the controlled substance schedules in Section 893.01, Florida Statutes, to include a particular substance or otherwise enacts, or amends a state statute providing for criminal penalties for the prohibitions of substances set forth in this ordinance, then upon the effective date of such enactment or amendment, the provisions of this ordinance addressed by the state statute shall no longer be deemed effective.

If the Florida Attorney General pursuant to the rulemaking authority provided in Chapter 893[, Florida Statutes,] adds a particular substance to the controlled substance schedules in Section 893.01, Florida Statutes, then upon the effective date of such enactment or amendment, the provisions of this ordinance addressed by the state statute shall no longer be deemed effective. Any violations of this ordinance committed prior to the Florida Legislature enacting such a statute or the Florida Attorney General promulgating rules may be prosecuted.

(k)

Penalty. Any store owner, store manager, store purchasing agent or other person violating any provision of this section shall be punishable by:

(1)

A fine not to exceed five hundred dollars ($500.00);

(2)

Imprisonment in the county jail for a period not to exceed sixty (60) days;

(3)

Both such fine and imprisonment in the discretion of the court having jurisdiction over the cause;

(4)

Fines in accordance with Chapter 8CC of the Code of Miami-Dade County; or

(5)

Completion of the Miami-Dade County Diversion Program, pursuant to Implementing Order of the Board of County Commissioners.

(Ord. No. 12-44, § 1, 7-3-12)