D.C. Act 21-100. Sale of Synthetic Drugs Emergency Amendment Act of 2015.

AN ACT

To amend, on an emergency basis, section 47-2844 of the District of Columbia Official Code to enable the Mayor to suspend or revoke the business license of any business engaged in the buying or selling of a synthetic drug and to enable the Chief of Police to seal a business licensee's premises for up to 96 hours for the buying or selling of a synthetic drug; and to amend the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985 to designate the sale of a synthetic drug as a per se imminent danger to the health or safety of District residents and provide for an administrative hearing after the sealing of a business licensee's premises.

BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Sale of Synthetic Drugs Emergency Amendment Act of 2015".

Sec. 2. Section 47-2844(a-2) of the District of Columbia Official Code is amended as follows:

(a) Paragraph (1) is amended as follows:

(1) The lead-in language is amending by striking the phrase "subsection (a-1) of this section" and inserting the phrase "subsection (a-1) of this section and paragraph (1A) of this subsection" in its place.

(2) Subparagraph (A) is amended by striking the phrase "subsection" and inserting the phrase "paragraph" in its place.

(3) Subparagraph (B) is amended by striking the phrase "subsection" and inserting the phrase "paragraph" in its place.

(4) Subparagraph (C) is amended by striking the phrase "subsection" and inserting the phrase "paragraph" in its place.

(b) A new paragraph (1A) is added to read as follows:

"(1A) In addition to the provisions of subsection (a-1) of this section and paragraph (1) of this subsection, the Mayor or the Chief of Police, notwithstanding § 2-1801.04(a)(1)), may take the following actions against, or impose the following requirements upon, any licensee, or agent or employee of a licensee, that knowingly engages or attempts to engage in the purchase, sale, exchange, or any other form of commercial transaction involving a synthetic drug, including the possession of multiple units of a synthetic drug:

"(A) For the first violation of this paragraph:

"(i) The Mayor shall issue a fine in the amount of $10,000;

"(ii) The Chief of Police, after a determination by the Mayor in accordance with § 2-1801.06(a), may seal the licensee's premises, or a portion of the premises, for up to 96 hours without a prior hearing;

"(iii) The Mayor may issue a notice to revoke all licenses issued to the licensee pursuant to this chapter.

"(iv)(I) With 14 days of having a licensee's premises sealed for the sale of a synthetic drug, the Mayor shall require the licensee to submit a remediation plan to the Director of the Department of Consumer and Regulatory Affairs, that contains the licensee's plan to prevent any future recurrence of purchasing, selling, exchanging, or otherwise transacting any synthetic drug and acknowledgement that a subsequent occurrence of engaging in prohibited activities may result in the revocation of all licenses issued to the licensee pursuant to this chapter.

"(II) If the licensee fails to submit a remediation plan in accordance with this sub-subparagraph, or if the Mayor, in consultation with the Chief of Police, rejects the licensee's remediation plan, the Mayor shall provide written notice to the licensee of the defects in any rejected remediation plan and the Mayor's intent to revoke all licenses issued to the licensee pursuant to this chapter.

"(III) If the licensee cures the defects in a rejected remediation plant, the Mayor may suspend any action to revoke any license of the licensee issued pursuant to this chapter.

"(B) For any subsequent violation of this paragraph:

"(i) The Mayor shall issue a fine in the amount of $20,000;

"(ii) The Chief of Police, after a determination by the Mayor in accordance with § 2-1801.06(a), may seal the licensee's premises, or portion of the premises, for up to 30 days, without a prior hearing.

"(C) If a licensee's premises is sealed under subparagraph (A) or (B) of this paragraph, a licensee shall have the right to request a hearing with the Office of Administrative Hearings within 2 business days after service of notice of the sealing of the premises pursuant to subparagraph (D) of this paragraph.

"(D) At the time of the sealing of the premises under subparagraph (A) or (B) of this paragraph, the Director of the Department of Consumer and Regulatory Affairs shall post at the premises and serve on the licensee, a written notice and order stating:

"(i) The specific action or actions being taken;

"(ii) The factual and legal bases for the action or actions;

"(iii) The right, within 2 business days after service of notice of the sealing of the premises, to request a hearing with the Office of Administrative Hearings;

"(iv) The right, within 2 business days of a timely request being received by the Office of Administrative Hearings, to a hearing before an administrative law judge; and

"(v) That it shall be unlawful for any person to enter the sealed premises for any purpose without written permission of the Director of the Department of Consumer and Regulatory Affairs.

"(E) A licensee shall pay a fine issued pursuant to subparagraph (A) or (B) of this paragraph within 20 days after adjudication. If the licensee fails to pay the fine within the specified time period, the Mayor may seal the premises until the fine is paid.

"(F) For the purposes of this paragraph, the term:

"(i) "Business days" means days in which the Office of Administrative Hearings is open for business.

"(ii) "Synthetic drug" means any product possessed, provided, distributed, sold, or marketed with the intent that it be used as a recreational drug, such that its consumption or ingestion is intended to produce effects on the central nervous system or brain function to change perception, mood, consciousness, cognition or behavior in ways that are similar to the effects of marijuana, cocaine, amphetamines or Schedule I narcotics under § 48-902.04. The term "synthetic drug" also includes any chemically synthesized product (including products that contain both a chemically synthesized ingredient and herbal or plant material) possessed, provided, distributed, sold or marketed with the intent that the product produce effects substantially similar to the effects created by compounds banned by District or federal synthetic drug laws or by the U.S. Drug Enforcement Administration pursuant to its authority under the Controlled Substances Act, approved October 27, 1970 (84 Stat. 1247; 21 U.S.C. § 812). The following factors shall be treated as indicia that a product is being marketed with the intent that it be used as a recreational drug:

"(I) The product is not suitable for its marketed use (such as a crystalline or powder product being marketed as "glass cleaner");

"(II) The individual or business providing, distributing, displaying or selling the product does not typically provide, distribute, or sell products that are used for that product's marketed use (such as liquor stores, smoke shops, or gas/convenience stores selling "plant food");

"(III) The product contains a warning label that is not typically present on products that are used for that product's marketed use including, "Not for human consumption", "Not for purchase by minors", "Must be 18 years or older to purchase", "100% legal blend", or similar statements;

"(IV) The product is significantly more expensive than products that are used for that product's marketed use;

"(V) The product resembles an illicit street drug (such as cocaine, methamphetamine, or Schedule I narcotic) or marijuana; or

"(VI) The licensee or any employee of the licensee has been warned by a District government agency or has received a criminal incident report, arrest report, or equivalent from any law enforcement agency that the product or a similarly labeled product contains a synthetic drug.".

Sec. 3. Section 106 of the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985, effective March 8, 1991 (D.C. Law 8-237; D.C. Official Code § 2-1801.06), is amended as follows:

(a) Subsection (a) is amended as follows:

(1) Strike the phrase "premises are primarily used" and insert the phrase "premises are used" in its place.

(2) Add a new sentence at the end to read as follows:

"Selling synthetic drugs, as defined in D.C. Official Code § 47-2844(a-2)(1A)(F)(ii), shall be a per se imminent danger to the health or safety of the residents of the District.".

(b) Subsection (c) is amended as follows:

(1) The existing text is designated as paragraph (1).

(2) The newly designated paragraph (1) is amended by striking the phrase "A licensee" and inserting the phrase "Except as provided in paragraph (2) of this subsection, a licensee" in its place.

(3) A new paragraph (2) is added to read as follows:

"(2) A licensee engaged in the sale of synthetic drugs in violation of D.C. Official Code § 47-2844(a-2)(1A) shall have the right to request a hearing within 2 business days after service of notice of the sealing of the premises. The Office of Administrative Hearings shall hold a hearing within 2 business days of receipt of a timely request, and shall issue a decision within 2 business days after the hearing.".

Sec. 4. Fiscal impact statement.

The Council adopts the fiscal impact statement of the Budget Director as the fiscal impact statement required by section 602(c)(3) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. Official Code § 1-206.02(c)(3)).

Sec. 5. Effective date.

This act shall take effect following approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), and shall remain in effect for no longer than 90 days, as provided for emergency acts of the Council of the District of Columbia in section 412(a) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 788; D.C. Official Code § 1-204.12(a)).