Village of Fox Point, WI Article VIII Drugs and Drug Paraphernalia

§ 670-32 Possession of marijuana.

[Amended 11-11-2014 by Ord. No. 2014-08]

No person shall carry, possess, or use 25 grams or less of marijuana as defined by § 961.01(14), Wis. Stats., unless such substance was obtained directly from, or pursuant to a valid prescription or order of, a practitioner as defined by § 961.01(19), Wis. Stats., while acting in the course of his professional practice, or except as otherwise authorized by Ch. 961, Wis. Stats.

§ 670-33 Control of drugs.

[Added by Ord. No. 480]

A. Purpose. To prevent:

(1) The display and availability for sale of certain instruments hereinafter enumerated and simulated drugs and simulated controlled substances hereinafter defined, for they contribute to the usage of drugs and controlled substances by the youth of the community by creating an atmosphere of apparent condonation by the community.

(2) The promotion and sale of products containing substances which may be harmless and inert in themselves but which are packaged or designed to simulate controlled substances or drugs and are harmful in that they promote and encourage entry into the drug culture and foster respectability for the use and abuse.

B. Definitions. As used in this section, the following terms shall have the meanings indicated:

ADMINISTER

The direct application of a controlled substance, whether by injection, inhalation, ingestion or any other means, to the body of a patient or research subject by:

(1) A practitioner (or in his presence by his authorized agent); or

(2) The patient or research subject at the direction and in the presence of the practitioner.

AGENT

An authorized person who acts on behalf of or at the direction of a manufacturer, distributor or dispenser. It does not include a common or contract carrier, public warehouseman or employee of the carrier or warehouseman.

BUREAU

The Bureau of Narcotics and Dangerous Drugs, U.S. Department of Justice, or its successor agency.

CLOSE PROXIMITY

Within 500 feet on a straight line commencing at the property lines nearest to each other.

CONTROLLED SUBSTANCE

A drug, substance or immediate precursor in Schedules I to V of Subchapter II of Wisconsin Statutes Chapter 961.

COUNTERFEIT SUBSTANCE

A controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name or other identifying mark, imprint, number or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person who in fact manufactured, distributed or dispensed the substance.

DANGEROUS DRUG

One that is unsafe for use except under the supervision of a practitioner because of its toxicity or other potentiality for human effect, method of use, or collateral measures necessary to use; "dangerous drug" shall include all other drugs or compounds, preparations or mixtures thereof which the State Department of Health Services shall find and declare by rule or regulation duly promulgated after reasonable public notice and opportunity for hearing to have a dangerous hallucinogenic, hypnotic, somnifacient or stimulating effect of the body of a human or animal. For the purposes of this definition, the phrase "intended for use" shall refer to the intent of the person selling, offering to sell, dispensing, giving away or displaying the instrument herein defined.

DELIVER or DELIVERY

The actual, constructive or attempted transfer from one person to another of a controlled substance, whether or not there is any agency relationship.

DISPENSE

To deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling or compounding necessary to prepare the substance for that delivery.

DISPENSER

A practitioner who dispenses.

DISTRIBUTE

To deliver other than by administering or dispensing a controlled substance.

DISTRIBUTOR

A person who distributes.

DRUG

(1) Substances recognized as drugs in the Official United States Pharmacopoeia, Official Homeopathic Pharmacopoeia of the United States or Official National Formulary or any supplement to any of them;

(2) Substances intended for use in diagnosis, cure, mitigation, treatment or prevention of disease in man or animals;

(3) Substances, other than food, intended to affect the structure or any function of the body of man or animals; and

(4) Substances intended for use as a component of any article specified in Subsection (1), (2) or (3) of this definition. It does not include devices or their components, parts or accessories.

IMMEDIATE PRECURSOR

A substance which the Controlled Substance Board has found to be and by rule designates as being the principal 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.

INSTRUMENT

A device designated for use or intended for use in ingesting, smoking, administering or preparing marijuana, cocaine, phencycledine, opium, or any derivative thereof, or any other controlled substance.

MANUFACTURE

The production, preparation, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging or labeling of a controlled substance:

(1) By a practitioner as an incident to his administering or dispensing of a controlled substance in the course of his professional practice; or

(2) By a practitioner, or by his authorized agent under his supervision, for the purpose of, or as an incident to, research, teaching or chemical analysis and not for sale.

MARIJUANA

All parts of the plant Cannabis Sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture 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, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber oil or cake or the sterilized seed of the plant which is incapable of germination.

MINOR

Any person who has not attained 18 years of age.

NARCOTIC DRUG

Any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:

(1) Opium and opiate, and any salt, compound, derivative or preparation of opium or opiate.

(2) Any salt, compound, isomer, derivative or preparation thereof which is chemically equivalent or identical with any of the substances referred to in Subsection (1) of this definition, but not including the isoquinoline alkaloids of opium.

(3) Opium poppy and poppy straw.

OPIATE

Any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. It does not include, unless specifically designated as controlled under § 961.11, Wis. Stats., the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). It does include its racemic and levorotatory forms.

OPIUM POPPY

The plant of the species Papaver Somniferum L., except its seeds.

PATIENT

As the case may be:

(1) The individual for whom a drug is prescribed or to whom a drug is administered; or

(2) The owner or the agent of the owner of the animal for which a drug is prescribed or to which a drug is administered; provided that the prescribing or administering referred to in Subsection (1) and this subsection is in good faith and in the course of professional practice only.

PERSON

An individual, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership or association or any other legal entity.

PLACE OF DISPLAY

Any museum, library, school or other similar public place upon which business is not transacted for a profit.

POPPY STRAW

All parts, except the seeds, of the opium poppy, after mowing.

PRACTITIONER

(1) A physician, dentist, veterinarian, podiatrist, scientific investigator or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or administer a controlled substance in the course of professional practice or research in this state.

(2) A pharmacy, hospital or other institution licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or administer a controlled substance in the course of professional practice or research in this state.

PREMISES

A business establishment and the structure of which it is a part and facilities and appurtenances therein and grounds, areas and facilities held out for the use of patrons.

PREMISES OPEN TO MINORS

Any business establishment which sells its wares or merchandise to minors or which permits minors to enter into its place of business.

PRESCRIPTION

A written order, and in cases of emergency, a telephone order, issued by a practitioner in good faith in the course of his professional practice to a pharmacist for a drug for a particular patient, which specifies the date of its issue, the name and address of the patient (and, if such drug is prescribed for an animal, the species of the animal), the name and quantity of the drug prescribed, the directions for use of such drug, and the signature of such practitioner.

PRODUCTION

Includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance.

SCHOOL

Any public or private elementary, junior high, or high school.

SIMULATED DRUGS and SIMULATED CONTROLLED SUBSTANCES

Any products which identify themselves by using a common name or slang term associated with a controlled substance or indicate by label or accompanying promotional material that the product simulates the effect of a controlled substance or drug.

SOMNIFACIENT and STIMULATING

The meaning attributable in standard medical lexicons.

ULTIMATE USER

A person who lawfully possesses a controlled substance for his own use or for the use of a member of his household or for administering to an animal owned by him or by a member of his household.

WAREHOUSEMAN

A person who, in the usual course of business, stores drugs for others lawfully entitled to possess them and who has no control over the disposition of such drugs except for the purpose of such storage.

WHOLESALER

A person engaged in the business of distributing drugs to persons included in any of the classes named above.

C. In determining whether an item constitutes an "instrument," a court may consider the following:

(1) Whether a person or business establishment charged with violating this section is a licensed distributor or dealer of tobacco products.

(2) Expert testimony as to the principal use of the devices, articles, or contrivances claimed to be instruments.

(3) Evidence concerning the total business of a person or business establishment and the type of devices, articles, contrivances, or items involved in the business.

(4) National and local advertising concerning the use of the devices, articles, or contrivances claimed to be instruments.

(5) Evidence of advertising concerning the nature of the business establishment.

D. Control of instruments used for inhaling or ingestion of controlled substances or drugs and control of simulated controlled substances.

(1) Sale and display prohibited. It shall be unlawful for any person, firm or corporation to sell, offer to sell, dispense, give away or display any instrument or simulated controlled substance or simulated drug in or upon any premises which are premises open to minors, unless the instruments, simulated controlled substances or simulated drugs are kept in such part of the premises that is not open to view by minors or to which minors do not have access, or are in close proximity to a school; provided, however, that display of any such items at a place of display for educational and scientific purposes shall not be unlawful.

(2) Nuisance. In addition to any penalty authorized by § 1-4 of the Fox Point Village Code, a violation of any provision of this section is hereby declared to be a public nuisance and punishable as a separate violation.

§ 670-34 Possession, manufacture and delivery of drug paraphernalia.

A. Definition. In this section, "drug paraphernalia" shall be defined as provided in § 961.571(1), Wis. Stats.[1]

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

B. Determination of drug paraphernalia shall be made in accordance with § 961.572, Wis. Stats.[2]

[2] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

C. Prohibited activities.

(1) Possession of drug paraphernalia. No person may use, or possess with the primary intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance or controlled substance analog in violation of this subsection.[3]

[3] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

(2) Manufacture or delivery of drug paraphernalia. No person may deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia knowing that it will be primarily used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance or controlled substance analog in violation of the subsection.[4]

[4] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

(3) Delivery of drug paraphernalia by a minor to a minor. Any person who is under 17 years of age who violates Subsection C(2) by delivering drug paraphernalia to a person under 17 years of age who is at least three years younger than the violator is guilty of a special offense, and citations for such an offense may require a mandatory appearance in Municipal Court.

D. Exemption. This section does not apply to drug manufacturers, medical practitioners, pharmacists, owner of pharmacies and other persons whose conduct is in accordance with Ch. 961, Wis. Stats. This section does not prohibit the possession, manufacture or use of hypodermics, in accordance with Ch. 961, Wis. Stats.

E. Penalties. Any person who is under 17 years of age who violates Subsection C(1), (2) or (3) shall, upon conviction, be subject to disposition under § 938.344, Wis. Stats. All other persons who violate Subsection C(1), (2) or (3) shall, upon conviction, be subject to the penalties described in § 1-4 of this Code.

§ 670-35 Synthetic cannabinoid prohibited.

[Added 2-14-2012 by Ord. No. 2012-01]

A. Prohibition. It shall be unlawful for any person to possess any one or more of the controlled substances referenced in § 66.0107(1)(bn), Wis. Stats., including such amendments, recodification, and renumbering as may be made to such statute from time to time in the future. Notwithstanding the foregoing, the statutory limitations against local enforcement regarding repeat offenders shall apply, as described in said statute.

B. Penalties.

(1) Any chemical used in violation of this section shall be seized and forfeited to the Village.

(2) Any person who violates Subsection A shall, upon conviction, be subject to a penalty as described in § 1-4 of this Code, provided further that the forfeiture shall be not less than $100, and the penalties may also include such other sanctions as provided in § 961.41(3g)(em), Wis. Stats., excluding imprisonment. The Code and statute references herein shall include such amendments, recodification and renumbering as may be made from time to time in the future.

§ 670-36 Public nuisances involving controlled substances.

[Added 3-12-2013 by Ord. No. 2013-02]

A. Public nuisance declaration. Violations of Chapter 961 of the Wisconsin Statutes constitute public nuisances under Chapter 823, Wisconsin Statutes, irrespective of any criminal prosecutions which may be or are commenced based on the same acts. This declaration is intended to reference the public nuisance declaration made in § 961.53, Wis. Stats., including such amendments or renumbering as may be made thereto from time to time.

B. Prohibition. It shall be unlawful for any person to commit a public nuisance, as declared in Subsection A above.

C. Penalties. Violation of this section shall be subject to the penalties described in § 1-4 of the Village Code.