Amended in Assembly January 4, 2016

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 261

Introduced by Assembly Member Travis Allen

February 9, 2015

An act to amend Section 11364.5 of the Health and Safety Code, relating to begin delete cigarettes and tobacco products. end delete begin insert drug paraphernalia. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 261, as amended, Travis Allen. begin delete Cigarettes and tobacco products: end delete begin insert Drug paraphernalia end insert retailers.

begin delete

The California Cigarette and Tobacco Products Licensing Act of 2003 requires a retailer to have and maintain a license from the State Board of Equalization to engage in the sale of cigarette and tobacco products in California.

end delete

Existing law begin delete prohibits end delete begin insert prohibits, except as authorized, end insert a person from maintaining or operating any place of business in which drug paraphernalia is kept, displayed, or offered in any manner, sold, furnished, transferred, or given away, unless that drug paraphernalia is completely and wholly kept, displayed, or offered within a separate room or enclosure to which persons under 18 years of age not accompanied by a parent or legal guardian are begin delete excluded. end delete begin insert excluded, prohibits an owner, manager, proprietor, or person in charge of such a room or enclosure from allowing any person under 18 years of age to enter the room or enclosure unless accompanied by his or her parents or legal guardian, and prohibits a person under 18 years of age from being in, remaining in, or visiting that room or enclosure unless accompanied by his or her parents or legal guardian. end insert Under existing law, a violation of begin delete that provision end delete begin insert those provisions end insert is not a criminal offense, but is grounds for revocation or nonrenewal of any license, permit, or other entitlement previously issued by a city, county, or city and county for the privilege of engaging in that business and is grounds for denial of any future license, permit, or other entitlement authorizing the conduct of that business or any other business, if the business includes the sale of drug paraphernalia.

This bill would instead prohibit a person from maintaining or operating a place of business begin delete described above unless the person has in place and maintains a license to engage in the sale of cigarette or tobacco products, and the place of business derives at least 50% of its annual gross revenues from the retail sale of cigarettes or tobacco products, as those terms are defined. end delete begin insert in which drug paraphernalia is kept, displayed or offered in any manner, sold, furnished, transferred or given away, except as authorized by law. end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 11364.5 of the Health and Safety Code
is amended to read:

11364.5.  

(a)  Except as authorized by law, a person shall not
maintain or operate any place of business in which drug
paraphernalia is kept, displayed or offered in any manner, sold,
furnished, transferred or given begin delete away unless all of the following
conditions are satisfied: end delete begin insert away. end insert

begin delete

(1) The drug paraphernalia is completely and wholly kept,
displayed or offered within a separate room or enclosure to which
persons under the age of 18 years not accompanied by a parent or
legal guardian are excluded. Each entrance to such a room or
enclosure shall be signposted in reasonably visible and legible
words to the effect that drug paraphernalia is kept, displayed or
offered in such room or enclosure and that minors, unless
accompanied by a parent or legal guardian, are excluded.

(2) The person has in place and maintains a license to engage
in the sale of cigarettes or tobacco products issued pursuant to
Division 8.6 (commencing with Section 22970) of the Business
and Professions Code.

(3) The place of business derives at least 50 percent of its annual
gross revenues from the retail sale of cigarettes, as defined in
Section 30003 of the Revenue and Taxation Code, or tobacco
products, as defined in Sections 30121 and 30131.1 of the Revenue
and Taxation Code.

(b)  Except as authorized by law, an owner, manager, proprietor
or other person in charge of any room or enclosure, within any
place of business, in which drug paraphernalia is kept, displayed
or offered in any manner, sold, furnished, transferred or given
away shall not permit or allow any person under 18 years of age
to enter, be in, remain in or visit such room or enclosure unless
such minor person is accompanied by one of his or her parents or
by his or her legal guardian.

(c)  Unless authorized by law, a person under 18 years of age
shall not enter, be in, remain in or visit any room or enclosure in
any place of business in which drug paraphernalia is kept, displayed
or offered in any manner, sold, furnished, transferred or given
away unless accompanied by one of his or her parents or by his or
her legal guardian.

end delete begin delete

(d)

end delete

begin insert (b) end insert  As used in this section, “drug paraphernalia” means all
equipment, products, and materials of any kind that are intended
for use or designed for use, in planting, propagating, cultivating,
growing, harvesting, manufacturing, compounding, converting,
producing, processing, preparing, testing, analyzing, packaging,
repackaging, storing, containing, concealing, injecting, ingesting,
inhaling, or otherwise introducing into the human body a controlled
substance. “Drug paraphernalia” includes, but is not limited to, all
of the following:

(1)  Kits intended for use or designed for use in planting,
propagating, cultivating, growing or harvesting of any species of
plant that is a controlled substance or from which a controlled
substance can be derived.

(2)  Kits intended for use or designed for use in manufacturing,
compounding, converting, producing, processing, or preparing
controlled substances.

(3)  Isomerization devices intended for use or designed for use
in increasing the potency of any species of plant that is a controlled
substance.

(4)  Testing equipment intended for use or designed for use in
identifying, or in analyzing the strength, effectiveness or purity of
controlled substances.

(5)  Scales and balances intended for use or designed for use in
weighing or measuring controlled substances.

(6)  Diluents and adulterants, such as quinine hydrochloride,
mannitol, mannite, dextrose, and lactose, intended for use or
designed for use in cutting controlled substances.

(7)  Separation gins and sifters intended for use or designed for
use in removing twigs and seeds from, or in otherwise cleaning or
refining, marijuana.

(8)  Blenders, bowls, containers, spoons, and mixing devices
intended for use or designed for use in compounding controlled
substances.

(9)  Capsules, balloons, envelopes, and other containers intended
for use or designed for use in packaging small quantities of
controlled substances.

(10)  Containers and other objects intended for use or designed
for use in storing or concealing controlled substances.

(11)  Hypodermic syringes, needles, and other objects intended
for use or designed for use in parenterally injecting controlled
substances into the human body.

(12)  Objects intended for use or designed for use in ingesting,
inhaling, or otherwise introducing marijuana, cocaine, hashish, or
hashish oil into the human body, such as the following:

(A)  Metal, wooden, acrylic, glass, stone, plastic, or ceramic
pipes with or without screens, permanent screens, hashish heads,
or punctured metal bowls.

(B)  Water pipes.

(C)  Carburetion tubes and devices.

(D)  Smoking and carburetion masks.

(E)  Roach clips, meaning objects used to hold burning material,
such as a marijuana cigarette that has become too small or too
short to be held in the hand.

(F)  Miniature cocaine spoons and cocaine vials.

(G)  Chamber pipes.

(H)  Carburetor pipes.

(I)  Electric pipes.

(J)  Air-driven pipes.

(K)  Chillums.

(L)  Bongs.

(M)  Ice pipes or chillers.

begin delete

(e)

end delete

begin insert (c) end insert  In determining whether an object is drug paraphernalia, a
court or other authority may consider, in addition to all other
logically relevant factors, the following:

(1)  Statements by an owner or by anyone in control of the object
concerning its use.

(2)  Prior convictions, if any, of an owner, or of anyone in
control of the object, under any state or federal law relating to any
controlled substance.

(3)  Direct or circumstantial evidence of the intent of an owner,
or of anyone in control of the object, to deliver it to persons whom
he or she knows, or should reasonably know, intend to use the
object to facilitate a violation of this section. The innocence of an
owner, or of anyone in control of the object, as to a direct violation
of this section shall not prevent a finding that the object is intended
for use, or designed for use, as drug paraphernalia.

(4)  Instructions, oral or written, provided with the object
concerning its use.

(5)  Descriptive materials accompanying the object that explain
or depict its use.

(6)  National and local advertising concerning its use.

(7)  The manner in which the object is displayed for sale.

(8)  Whether the owner, or anyone in control of the object, is a
legitimate supplier of like or related items to the community, such
as a licensed distributor or dealer of tobacco products.

(9)  The existence and scope of legitimate uses for the object
in the community.

(10)  Expert testimony concerning its use.

begin delete

(f)

end delete

begin insert (d) end insert  This section does not apply to any of the following:

(1)  Any pharmacist or other authorized person who sells or
furnishes drug paraphernalia described in paragraph (11) of
subdivision begin delete (d) end delete begin insert (b) end insert upon the prescription of a physician, dentist,
podiatrist or veterinarian.

(2)  Any physician, dentist, podiatrist or veterinarian who
furnishes or prescribes drug paraphernalia described in paragraph
(11) of subdivision begin delete (d) end delete begin insert (b) end insert to his or her patients.

(3)  Any manufacturer, wholesaler or retailer licensed by the
California State Board of Pharmacy to sell or transfer drug
paraphernalia described in paragraph (11) of subdivision begin delete (d). end delete begin insert (b). end insert

begin delete

(g)

end delete

begin insert (e) end insert  Notwithstanding any other law, including Section 11374, a
violation of this section is not a criminal offense, but operation of
a business in violation of the provisions of this section shall be
grounds for revocation or nonrenewal of any license, permit, or
other entitlement previously issued by a city, county, or city and
county for the privilege of engaging in that business and shall be
grounds for denial of any future license, permit, or other entitlement
authorizing the conduct of that business or any other business, if
the business includes the sale of drug paraphernalia.