ARTICLE VIII. - ILLEGAL SMOKING MATERIAL AND ILLEGAL SMOKING MATERIAL PARAPHERNALIA

Footnotes:

--- (4) --- Editor's note— Ord. No. 2010-24, § 2, adopted Jan. 11, 2011, enacted provisions intended for codification as §§ 70-4—70-10 of this Code. To preserve the style of this Code, and to facilitate indexing, said provisions have been redesignated as Art. X, §§ 70-124—70-130.

Sec. 70-124. - Definitions.#

Illegal smoking material shall mean any substance, however marketed, which can reasonably be converted for smoking purposes whether it is presented as incense, tobacco, herbs, spices or any blend thereof if it includes any of the following chemicals or a comparable chemical: (1)

Salvia divinorum or salvinorin A; all parts of the plant presently classified botanically as salvia divinorum, whether growing or not, the seeds thereof, any extract from any part of such plant, and every compound, manufacture, salts, derivative, mixture or preparation of such plant, its seeds or extracts;

(2)

2-[(1R, 3S)-3-hydroxycyclohexyl]-5-(2-methyloctan-2-yl) phenol (also known as CP47, 497) and homologues;

(3)

(6aS, 10aS)-9-(hydroxymethyl)-6, 6-dimethyl-3-(2-methyloctan-2-yl)-6a, 7, 10, 10a-tetra-hydrobenzo [c]chromen-1-ol (also known as HU-211 or Dexanabinol);

(4)

1-pentyl-3-(1-naphthoyl) indole (also known as JWH-018);

(5)

1-butyl-3-(1-naphthoyl) indole (also known as JWH-073); or

(6)

1-pentyl-3-(4-methoxynaphthoyl) indole (also known as JWH-081).

Products containing some or all of the above substances are currently being marketed under the following commercial names: "K-2", "K-2 Summit", "K-2 Sex", "Genie", "Dascents", "Zohai", "Sage", "Spice", "KO Knock-Out 2", "Spice Gold", "Spice Diamond", "Yucatan Fire", "Solar Flare", "Pep Spice", "Fire N' Ice", " Blaze" "Red X Dawn" and "Salvia Divinorum".

Any product containing any of the chemical compounds set forth above shall be subject to the provisions of this article, regardless of whether they are marketed under alternative names.

Illegal smoking material paraphernalia shall mean any paraphernalia, equipment or utensil that is used or intended to be used in ingesting or inhaling illegal smoking materials and may include, but is not limited to: (1)

A metal, wooden, acrylic, glass, stone, plastic, or ceramic pipe with or without a screen, permanent screen, hashish head, or punctured metal bowl;

(2)

A water pipe;

(3)

A carburetion tube or device;

(4)

A smoking or carburetion mask;

(5)

A chamber pipe;

(6)

A carburetor pipe;

(7)

An electric pipe;

(8)

An air-driven pipe;

(9)

A chillum;

(10)

A bong; or

(11)

An ice pipe or chiller.

Person shall mean an individual, a group of two or more individuals, proprietorship, corporation, partnership, wholesaler, association or other legal entity, or any licensed or unlicensed business.

(Ord. No. 2010-24, § 2(70-4), 1-11-11)

Sec. 70-125. - Illegal smoking materials and illegal smoking material paraphernalia; purpose.#

The purpose of this article is to prohibit the purchase, sale, offer for sale, delivery, or gift of illegal smoking materials as defined herein within the city limits of the City of Burnet, and to prohibit the possession or use of illegal smoking materials and illegal smoking material paraphernalia within the city limits of the city. Any form of delivery, including, without limitation, a simple gift constitutes a violation of this article.

(Ord. No. 2010-24, § 2(70-5), 1-11-11)

Sec. 70-126. - Purchase, sale, delivery, offer, or gift.#

It shall be unlawful for any person to purchase, sell, offer for sale, deliver or to give any illegal smoking material to any person.

(Ord. No. 2010-24, § 2(70-6), 1-11-11)

Sec. 70-127. - Possession or use of illegal smoking materials.#

It shall be unlawful for any person to have in their possession or to use, inject, ingest, inhale, or otherwise introduce into the human body illegal smoking materials within the corporate limits of the city.

(Ord. No. 2010-24, § 2(70-7), 1-11-11)

Sec. 70-128. - Possession or use of illegal smoking material paraphernalia.#

It shall be unlawful for any person to have in their possession any illegal smoking material paraphernalia with the intent to use it, to ingest, inhale or otherwise consume or introduce into the human body illegal smoking material. It is a violation of this section, if a person is found in possession of illegal smoking material paraphernalia and appropriate forensic testing is done on the paraphernalia showing traces of illegal smoking material present on the paraphernalia.

(Ord. No. 2010-24, § 2(70-8), 1-11-11)

Sec. 70-129. - Affirmative defenses to prosecution.#

(a)

It shall be an affirmative defense to prosecution for a violation of this article if the use of the illegal smoking material is at the direction or under a prescription issued by a licensed physician or dentist authorized to prescribe controlled substances within the State of Texas.

(b)

It shall be an affirmative defense to prosecution under the terms of this article if an individual charged with a violation can provide proper and complete historic documentation that the use of such materials is a portion of a religious undertaking or activity of a religious denomination in which they have long standing historic membership supported by documentation from clergy or spiritual leader recognized by the state.

(Ord. No. 2010-24, § 2(70-9), 1-11-11)

Sec. 70-130. - Penalty.#

(a)

Any person who violates any provision of this article shall be guilty of a misdemeanor, punishable by a fine not to exceed $500.00.

(b)

Every act in violation of this article shall constitute a separate offense.

(c)

Unless otherwise specifically set forth herein, an allegation and/or evidence of culpable mental state is not required for the proof of an offense of this article.

(d)

The penal provisions imposed under this article shall not preclude the city from filing suit to enjoin the violation of this article. The city retains all legal rights and remedies available to it pursuant to local, state and federal law.

(Ord. No. 2010-24, § 2(70-10), 1-11-11)