§ 44-241. Definitions.

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Controlled substance means any drug, substance or immediate precursor included in any of the schedules designated in the Uniform Controlled Substance Act, Chapter 65, Article 41 of the Kansas Statutes Annotated ( 65-4101 et seq. ).

Controlled substance analog means a substance that is intended for human consumption, and at least one of the following:

(1)

The chemical structure of the substance is substantially similar to the chemical structure of a controlled substance listed in or added to the schedules designated in K.S.A. 65-4105 or 65-4107 , and amendments thereto;

(2)

The substance has a stimulant, depressant or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance included in the schedules designated in K.S.A. 65-4105 or 65-4107 , and amendments thereto; or

(3)

With respect to a particular individual, such individual represents or intends the substance to have a stimulant, depressant or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance included in the schedules designated in K.S.A. 65-4105 or 65-4107 , and amendments thereto.

Controlled substance analog does not include:

(1)

A controlled substance;

(2)

A substance for which there is an approved new drug application; or

(3)

A substance with respect to which an exemption is in effect for investigational use by a particular person under section 505 of the federal food, drug, and cosmetic act, 21 U.S.C. § 355, to the extent conduct with respect to the substance is permitted by the exemption.

Cultivate means the planting or promotion of growth of plants which contain or can produce controlled substances.

Distribute means the actual, constructive or attempted transfer from one person to another of some item whether or not there is an agency relationship. "Distribute" includes, but is not limited to, sale, offer for sale or any act that causes some item to be transferred from one person to another. "Distribute" does not include acts of administering, dispensing or prescribing a controlled substance as authorized by the pharmacy act of the state of Kansas, the uniform controlled substances act or otherwise authorized by law.

Drug means:

(1)

Substances recognized as drugs in the official United States pharmacopeia, official homeopathic pharmacopoeia of the United States or official national formulary or any supplement to any of them;

(2)

Substances intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in humans or animals;

(3)

Substances, other than food, intended to affect the structure or any function of the body of humans or animals; and

(4)

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

Drug paraphernalia:

(1)

The term "drug paraphernalia" means all equipment and materials of any kind which are used, or primarily intended 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 in violation of Chapter 44, Article VI of the Code of Ordinances of the City of Merriam, Kansas or Chapter 21, Article 57 of the Kansas Statutes Annotated ( 21-5701 et seq, ), as from time to time amended. "Drug paraphernalia" shall include, but is not limited to:

a.

Kits used or intended for use in planting, propagating, cultivating, growing or harvesting any species of plant which is a controlled substance or from which a controlled substance can be derived;

b.

Kits used or intended for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances;

c.

Isomerization devices used or intended for use in increasing the potency of any species of plant that is a controlled substance;

d.

Testing equipment used or intended for use in identifying or in analyzing the strength, effectiveness or purity of controlled substances;

e.

Scales and balances used or intended for use in weighing or measuring controlled substances;

f.

Diluents and adulterants, including, but not limited to, quinine hydrochloride, mannitol, mannite, dextrose and lactose, which are used or intended for use in cutting controlled substances;

g.

Separation gins and sifters used or intended for use in removing twigs and seeds from or otherwise cleaning or refining marijuana;

h.

Blenders, bowls, containers, spoons and mixing devices used or intended for use in compounding controlled substances;

i.

Capsules, balloons, envelopes, bags and other containers used or intended for use in packaging small quantities of controlled substances;

j.

Containers and other objects used or intended for use in storing or concealing controlled substances;

k.

Hypodermic syringes, needles and other objects used or intended for use in parenterally injecting controlled substances into the human body;

l.

Objects used or primarily intended or designed for use in ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish, hashish oil, phencyclidine (PCP), methamphetamine or amphetamine into the human body, such as:

1.

Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;

2.

Water pipes, bongs or smoking pipes designed to draw smoke through water or another cooling device;

3.

Carburetion pipes, glass or other heat resistant tubes or any other device used, intended to be used or designed to be used to cause vaporization of a controlled substance for inhalation;

4.

Smoking and carburetion masks;

5.

Roach clips, 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;

6.

Miniature cocaine spoons and cocaine vials;

7.

Chamber smoking pipes;

8.

Carburetor smoking pipes;

9.

Electric smoking pipes;

10.

Air-driven smoking pipes;

11.

Chillums;

12.

Bongs;

13.

Ice pipes or chillers;

14.

Any smoking pipe manufactured to disguise its intended purpose;

15.

Wired cigarette papers; or

16.

Cocaine freebase kits.

The term "drug paraphernalia" shall not include any products, chemicals or materials described in K.S.A. 2017 Supp. 21-5709(a) , and amendments thereto.

(2)

In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other logically relevant factors, the following:

a.

Statements by an owner or person in control of the object concerning its use;

b.

Prior convictions, if any, of an owner or person in control of the object, under any city, state or federal law relating to any controlled substance;

c.

The proximity of the object, in time and space, to a direct violation of Chapter 44, Article VI of the Code of Ordinances of the City of Merriam, Kansas or K.S.A. 2016 Supp. 21-5701 through 21-5717, and amendments thereto;

d.

The proximity of the object to controlled substances;

e.

The existence of any residue of controlled substances on the object;

f.

Direct or circumstantial evidence of the intent of an owner or person in control of the object, to deliver it to a person the owner or person in control of the object knows, or should reasonably know, intends to use the object to facilitate a violation of Chapter 44, Article VI of the Code of Ordinances of the City of Merriam, Kansas or K.S.A. 2016 Supp. 21-5701 through 21-5717, and amendments thereto. The innocence of an owner or person in control of the object as to a direct violation of Chapter 44, Article VI of the Code of Ordinances of the City of Merriam, Kansas or K.S.A. 2016 Supp. 21-5701 through 21-5717, and amendments thereto, shall not prevent a finding that the object is intended for use as drug paraphernalia;

g.

Oral or written instructions provided with the object concerning its use;

h.

Descriptive materials accompanying the object which explain or depict its use;

i.

National and local advertising concerning the object's use;

j.

The manner in which the object is displayed for sale;

k.

Whether the owner or person in control of the object is a legitimate supplier of similar or related items to the community, such as a distributor or dealer of tobacco products;

l.

Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise;

m.

The existence and scope of legitimate uses for the object in the community;

n.

Expert testimony concerning the object's use;

o.

Any evidence that alleged paraphernalia can or has been used to store a controlled substance or to introduce a controlled substance into the human body as opposed to any legitimate use for the alleged paraphernalia; or

p.

Advertising of the item in magazines or other means which specifically glorify, encourage or espouse the illegal use, manufacture, distribution or cultivation of controlled substances. The fact that an item has not yet been used or did not contain a controlled substance at the time of the seizure is not a defense to a charge that the item was possessed with the intention for use as drug paraphernalia.

Manufacture means the production, preparation, propagation, compounding, conversion or processing of a controlled substance either directly or indirectly or by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis. "Manufacture" does not include:

(1)

The preparation or compounding of a controlled substance by an individual for the individual's own lawful use or the preparation, compounding, packaging or labeling of a controlled substance;

a.

By a practitioner or the practitioner's agent pursuant to a lawful order of a practitioner as an incident to the practitioner's administering or dispensing of a controlled substance in the course of the practitioner's professional practice; or

b.

By a practitioner or by the practitioner's authorized agent under such practitioner's supervision for the purpose of or as an incident to research, teaching or chemical analysis or by a pharmacist or medical care facility as an incident to dispensing of a controlled substance.

(2)

The addition of diluents or adulterants, included, but not limited to, quinine hydrochloride, mannitol, mannite, dextrose or lactose, which are intended for use in cutting a controlled substance.

Marijuana means all parts of all varieties of the plant Cannabis 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. "Marijuana" does not include:

(1)

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;

(2)

Any substance listed in schedules II through V of the uniform controlled substances act; or

(3)

Cannabidiol (other trade name: 2-[3-methyl-6-(l-methylethenyl)-2-cyclohexen-l-yl]-5-pentyl-1, 3-benzenediol).

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

Possession means having joint or exclusive control over an item with knowledge of and intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.

Simulated controlled substance means any product which identifies itself by a common name or slang term associated with a controlled substance and which indicates on its label or accompanying promotional material that the product simulates the effect of a controlled substance.

(Code 1967, § 16-384; Ord. No. 1360, § 1, 7-26-1999; Ord. No. 1756 , § 1, 9-26-2016; Ord. No. 1771 , § 1, 8-14-2017; Ord. No. 1789 , § 2, 7-23-2018)