§ 15-24 — Sale of drug stem intended for illegal drug use

Sec. 15-24. - Sale of drug stem intended for illegal drug use.

(a) Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning: Controlled substance means any substance controlled by the North Carolina Controlled Substances Act as set forth in G.S. 90-86 et seq. Drug stem means objects that facilitate the ingestion and/or inhalation of crack cocaine, crank methamphetamine or any other controlled substance as defined by the North Carolina Controlled Substances Act. A "drug stem" is further defined as a two- to six-inch-long tube, one-eighth-inch to three-quarter-inch in diameter and that is made of glass, metal or ceramic or any other material. Drug stems include, but are not limited to, glass vials or tubes which may contain novelty items of insignificant value or may contain items that are not, in the normal course of business, packaged in such a manner. Sell and sale mean the commercial transfer of ownership, possession or use of a drug stem in the regular course of wholesale or retail business for consideration of any type. (b) Determination. In determining whether an object is a drug stem, the following factors, in addition to all other relevant evidence, may be considered: (1) Statements by any person, owner, or by anyone in control of the object concerning its use. (2) Prior convictions, if any, of any person, owner, or of anyone in control of the object, for violation of the federal or state controlled substances acts. (3) The proximity of the drug stem, in time and space, to a controlled substance. (4) The existence of any residue of a controlled substance on the drug stem. (5) The proximity of the drug stem to other drug paraphernalia as defined by the North Carolina Drug Paraphernalia Act as set forth in G.S. 90-113.20 et seq. (6) Instructions, oral or written, provided with the drug stem concerning its use. (7) Descriptive materials accompanying the drug stem explaining or depicting its use. (8) Advertising concerning its use. (9) The manner in which the drug stem is displayed for sale. (10) The existence and scope of legitimate uses of the drug stem in the community. (11) Expert testimony concerning whether the drug stem is primarily used for introducing a controlled substance into the human body. (12) The intent of the owner or other person in control of the drug stem to deliver it to persons whom he knows or reasonably should know intends to use the object to facilitate a violation of the North Carolina Controlled Substances Act. (13) Direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise. (c) Sale of drug stem. It is a violation of this section for any person or retail establishment to sell, or to possess with intent to sell, a drug stem knowing that it will be used to ingest, inhale or otherwise introduce into the human body a controlled substance. (d) Defense. It is a defense to a violation of this section that the drug stem is primarily designed and used for a legitimate purpose unrelated to the ingestion of a controlled substance into the human body. (e) Penalty; additional remedies. The penalty and additional remedies for violation of this section shall be as follows: (1) Civil penalty; injunctive relief. Any person who violates any subsection of this section shall be subject to a civil penalty of $50.00 for each violation or injunctive relief to restrain the person from continuing the violation or threat of violation, or both injunctive relief and a civil penalty. Upon application for injunctive relief and a finding that a person is violating or threatening to violate any subsection of this section, the superior court shall grant injunctive relief to restrain the violation. Failure to pay the civil penalty or file an appeal within 30 days after notification of the violation shall result in an additional penalty of $50.00. The city may establish procedures for the collection of the civil penalties and may enforce the penalties by a civil action in the nature of a debt. (2) Continuing violations. Each day of violation of any subsection of this section shall constitute a separate offense. (3) Forfeiture of drug stem. Any item sold or possessed with the intent to sell by any person, after a court has adjudicated such an item to constitute drug paraphernalia as defined by this section, shall be subject to forfeiture of the drug stem to the city upon order of the court entered in any injunction proceedings instituted under the authority of this section or in a separate forfeiture action instituted by the city. (f) Appeal. A notice of appeal shall be filed within 30 days after notification of the violation. The failure to give notice of appeal within this time period shall constitute a waiver of the right to contest the citation. Appeals shall be heard through an administrative process established by the Charlotte-Mecklenburg Police Department. An individual desiring a hearing must post a bond equal to the amount of the civil penalty before an appeal hearing will be scheduled. The hearing officer's decision is subject to review in the superior court of the county by proceedings in the nature of certiorari.

(Code 1985, § 15-32; Ord. No. 2447, §§ 8, 9, 11-24-2003)