§ 10-203 Unlawful manufacture, distribution or sale of a synthetic cannabinoid or synthetic phenethylamine.
a. No person or entity shall knowingly manufacture, sell, offer for sale, display for sale, distribute for sale, or possess with intent to sell:
1. any synthetic cannabinoid or synthetic phenethylamine, as such terms are defined by part 9 of title 10 of the New York codes, rules and regulations as of the date of the violation, or as included in schedule I of the federal drug enforcement administration schedules of controlled substances, as listed in 21 CFR § 1308.11, or successor regulation, as of the date of the violation, or any cannabimimetic agent, as defined in 21 U.S.C. § 812, as of the date of the violation; or
2. any analogue of a synthetic cannabinoid, synthetic phenethylamine or cannabimimetic agent. For the purposes of this paragraph, "analogue of a synthetic cannabinoid, synthetic phenethylamines or cannabimimetic agent" means a substance that has a chemical structure that is substantially similar to the chemical structure of a substance described in paragraph 1 of this subdivision and has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of such a substance described in paragraph 1 of this subdivision; or
3. any substance commonly known as synthetic marijuana, K-2 or bath salts, including but not limited to a substance so identified as an embargoed product by order of the commissioner of the department of health and mental hygiene, that is represented as being intended for human consumption. Evidence of representations that a substance commonly known as synthetic marijuana, K-2 or bath salts is intended for human consumption may include, but is not limited to, oral, visual or written representations by the manufacturer, distributor or seller about the substance with regard to its nature, use or effect; or
4. any purported synthetic drug. In any proceeding commenced in connection with an alleged violation of this paragraph, it shall be necessary to prove that the purported synthetic drug was represented to be a substance described in paragraph 1, 2 or 3 of this subdivision; provided, however, that it shall not be a defense to prosecution under this section that the accused believed the purported synthetic drug to be such a substance. For the purposes of this subdivision, the term "purported synthetic drug" means a substance that, by dosage unit appearance, including color, shape and size, and by a representation, is represented to be a substance described in paragraph 1, 2 or 3 of this subdivision. Evidence of such a representation may include, but is not limited to, oral, visual or written representations by the manufacturer, distributor or seller about the substance with regard to:
(a) its price, nature, use or effect as a substance described in paragraph 1, 2 or 3 of this subdivision; or
(b) its packaging in a manner normally used for substances described in paragraph 1, 2 or 3 of this subdivision.
b. Possession of ten or more packets, individual containers or other separate units of a substance described in subdivision a of this section is presumptive evidence that the possessing person or entity is distributing such substance for sale or possesses such substances with intent to sell.
c. Any person or entity that violates subdivision a of this section shall be guilty of a misdemeanor punishable by a fine of not more than $5,000 or imprisonment of up to one year, or both.
d. In addition to the penalties prescribed in subdivision c of this section, any person or entity that violates subdivision a of this section shall be liable for a civil penalty of not less than $1,000 and not more than $10,000 recoverable in a proceeding before any tribunal established within the office of administrative trials and hearings or within any agency of the city of New York designated to conduct such proceedings, provided that upon the first such violation, and any other such violations by the same person or entity on the same day as such first violation, such person or entity shall be liable for a civil penalty of not less than $500 and not more than $5,000 if such violation is not in conjunction with the commission of any crime other than possession, manufacture, distribution or sale of any synthetic cannabinoid, synthetic phenethylamine, or other substance described in subdivision a of this section. The manufacture, distribution, sale, offer for sale, display for sale, or possession with intent to sell of each packet, individual container or other separate unit of substance described in subdivision a of this section shall constitute a separate violation under this subdivision, with a maximum civil liability of $50,000 for violations in a day for a single person or entity under this subdivision.
e. Any police officer, or sheriff, undersheriff, or deputy sheriff of the city of New York, or any peace officer acting pursuant to his or her special duties may enforce the provisions of this section. A proceeding to recover any civil penalty authorized pursuant to subdivision d of this section shall be commenced by the service of a notice of violation returnable to any tribunal established within the office of administrative trials and hearings or within any agency of the city of New York designated to conduct such proceedings. The notice of violation or copy thereof when filled in and served shall constitute notice of the violation charged.
f. Whenever a police officer, or sheriff, undersheriff, or deputy sheriff of the city of New York, or any peace officer acting pursuant to his or her special duties, discovers any substance described in subdivision a being possessed in a manner that violates such subdivision, such officer is authorized and empowered to seize and take possession of such substance, which shall be destroyed or used either for law enforcement purposes or for evidentiary purposes in connection with any enforcement proceeding conducted pursuant to this section.
g. In any proceeding commenced pursuant to this section, it shall be no defense that the substance's packaging or other representation states or indicates that the substance is not intended for human consumption.
h. Any person who engages in business as a retail dealer pursuant to section 20-202 of the code shall be subject to:
1. a mandatory suspension of his or her retail dealer license for a period of thirty days for a violation of this section; or
2. a mandatory revocation of his or her retail dealer license, or of any subsequent license holder, for a second or subsequent violation of this section occurring on a different day at the same place of business within a three-year period, unless the subsequent license holder provides the commissioner of the agency that has commenced the proceeding to recover a civil penalty pursuant to subdivision d of this section with adequate documentation demonstrating that such subsequent license holder acquired the premises or business through an arm's length transaction, as defined in paragraph 5 of subdivision d of section 20-202 of the code, and that the sale or lease was not conducted, in whole or in part, for the purpose of permitting the original licensee to avoid the effect of violations on the premises.
(L.L. 2015/097, 10/20/2015, eff. 12/19/2015; Am. L.L. 2015/095, 10/20/2015, eff. 12/19/2015)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2015/095 and L.L. 2015/097.
