CHAPTER XI. PUBLIC OFFENSESCHAPTER XI. PUBLIC OFFENSES\ARTICLE 3. DRUGS

(a)   “Controlled substance” means any drug or substance included in I through V, both inclusive of the Uniform Controlled Substances Act found in Chapter 65, Article 41 of the Kansas Statutes Annotated.

(b)   “Drug” means:

(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 the diagnosis, cure, mitigation, treatment, or

(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 clause 1, 2, or 3 of this subsection. It does not include devices or their components, parts or accessories.

(c)   “Deliver” or “delivery” means the actual constructive or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

(d)   “Dangerous drug” means 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 Drugs” shall include all other drugs or compounds, preparations, or mixtures thereof which the State Board of Health 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.

(e)   “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 seed 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 there from, fiber, oil, or cake or the sterilized seed of the plant which is incapable of germination.

(f)   “Manufacture” means 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 and includes any packaging or repackaging of the substance or labelling 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 labelling of a controlled substance;

(1)   By a practitioner or his agent pursuant to a lawful order of 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 or by a pharmacist or hospital as an incident to his or its dispensing of a controlled substance.

(g)   “Patient” means, 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 owners 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 this subsection is in good faith and in the course of professional practice only;

(h)   “Person” means individual, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership or association or any other legal entity.

(i)    “Pharmacist” means an individual currently licensed by the board to practice the profession of pharmacy in this state.

(j)    “Practitioner” means a physician (M.D. or D.O.), dentist, podiatrist, veterinarian, scientific investigator, or other person licensed, registered, or otherwise authorized by law to administer and prescribe, use in teaching or chemical analysis, or conduct research with respect to a controlled substance in the course of professional practice and research.

(k)   “Production” includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance.

(l)    “Prescription” means a written order, and in cases of emergency, a telephonic 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 such animal), the name and quantity of the drug prescribed, the directions for use of such drug, and the signature of such practitioner.

(m)  “Somnifacient” and “stimulating” have the meaning attributable in standard medical lexicons.

(n)   “Warehouseman” means 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.

(o)   “Wholesaler” means a person engaged in the business of distributing drugs to persons included in any of the classes named in clauses A to E inclusive of Section 11.

(p)   “Drug paraphernalia” means any device intended for use in ingesting, smoking, administering, or preparing marijuana, cocaine, phencyclidine, opium, or any derivative thereof, or any other controlled Substance.

For the purposes of this Subsection, the phrase “Intended for use” shall refer to the intent of the person selling, offering to sell, dispensing, giving away, or displaying the drug paraphernalia herein defined.

In determining whether an item constitutes drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:

(1)   Whether a person charged with violating this ordinance is a licensed distributor or dealer of tobacco produces under Chapter 79, Article 33 of the Kansas Statutes Annotated.

(2)   Expert testimony as to the use of the item.

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

(4)   National and local advertising concerning the use of the item of which the person charged with violating this ordinance has knowledge.

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

(6)   Statements by a person charged with violating this ordinance concerning the use of the item.

(7)   Prior convictions, if any, of a person charged with violating this ordinance, under any state, federal, or municipal law relating to any controlled substance.

(8)   Instructions, oral or written, provided with the item concerning its use.

(9)   Descriptive materials accompanying the item which explain or depict its use.

(10) Catalogues or other promotional materials concerning the item of which the person charged with violating this ordinance has knowledge.

(q)   “Minor” shall mean any person who has not attained 18 years of age.

(r)    “Premises open to minors” means any business establishment which sells its wares or merchandise to minors or which permits minors to enter into its place of business.

(s)   “Simulated drugs” and “simulated controlled substances” are 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.

(t)    “Place of display” means any museum, library, school, or other similar public place upon which business is not transacted for profit.

(u)   “School” means any public or private elementary, junior high, or high school.

(v)   “Close proximity” means within 500 feet on a straight line commencing at the property lines nearest to each other.

(w)  “Premises” means 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.

(Code 2016)

(a)   It is unlawful for any person to deliver, possess, manufacture, have under his control, sell, or offer for sale any drug controlled substance or marijuana all as defined in Section 11-301 unless:

(1)   Such drug is delivered by a pharmacist, or his authorized agent, in good faith upon prescription and there is affixed to the immediate container in which such drug is delivered a label bearing:

*     The name and address of the owner of the establishment from which such drug was delivered,

*     The date on which the prescription for such drug was filled,

*     The number of such prescription as filed in the prescription files of the pharmacist who filled such prescription,

*     The name of the practitioner who prescribed such drug,

*     The name and address of the patient, and if such drug was prescribed for an animal, a statement showing the species of the animal, and

*     The direction for use of the drug and cautionary statements, if any, as contained in the prescription; and

(2)   In the event, that such delivery is pursuant to telephonic order, such prescription shall be promptly reduced to writing and filed by the pharmacist; or

(3)   Such drug is delivered by a practitioner in good faith and in the course of his professional practice only,

(b)   It is unlawful for any person to refill any prescription for a drug unless such refilling is specifically authorized by the prescriber.

(c)   It is unlawful for any person to fail to keep the records required by Section 11-305.

(d)   It is unlawful for any person to possess a drug unless such person obtained such drug on the prescription of a practitioner or in accordance with subsection (a)(3) of this section or from a person licensed by the laws of any other state or the District of Columbia to prescribe or dispense drugs.

(e)   It is unlawful for any person to refuse to make available and to accord full opportunity to check any record, file, stock, or inventory as required by Section 11-305.

(f)   It is unlawful for any person to use to his own advantage, or to reveal other than to a public officer or employee charged with the duty of enforcing laws relating to the handling, sale and distribution of drugs, or to a court when relevant in a judicial proceeding, any information acquired under the authority of Section 14-5 concerning any method or process which has a trade secret is entitled to protection.

(g)   It is unlawful for any person to obtain or attempt to obtain a drug by fraud, deceit, misrepresentation, or subterfuge; or by the forgery or alteration of a prescription; or by the use of a false name or the giving of a false address.

(h)   It is unlawful for any person to sell, offer for sale or have in his possession with the intent to sell any hallucinogenic or stimulating drug described in Section 11-301.

(Code 2016)

(a)   The provisions of subsections (a) and (e) of Section 11-302 shall not be applicable:

(1)   To the delivery of drugs for medical or scientific purposes only to persons included in any of the classes hereinafter named, or to the agents or employees of such persons, for use in the usual course of their business or practice or in the performance of their official duties, as the case may be; or

(2)   To the possession of drugs by such persons or their agents or employees for such use:

(A)  Pharmacists,

(B)  Practitioners,

(C)  Persons who procure drugs: (i) for disposition by or under the supervision of pharmacists or practitioners employed by them or (ii) for the purpose of lawful research, teaching, or testing and not for resale.

(D)  Hospitals and other institutions which procure drugs for lawful administration by or under the supervision of practitioners.

(E)   Manufacturers and wholesalers,

(F)   Carriers and warehousemen.

(b)   Nothing contained in Section 11-302, shall make it unlawful for a public officer, agent or employee, or person aiding such public officer in performing his official duties to possess obtain, or attempt to obtain a drug for the purpose of enforcing the provisions of any law of this state or of the United States relating to the regulation of the handling, sale or distribution of drugs.

(c)   Nothing in this article shall apply to a compound, mixture, or preparation containing a drug which is sold in good faith for the purpose for which it is intended and not for the purpose of evading the provisions of this ordinance if such compound, mixture, or preparation contains a sufficient quantity of another therapeutic agent or agents, in addition to such a drug, to cause it to prevent the ingestion of a sufficient amount of drug to cause a dangerous hypnotic somnifacient or stimulating action.

(Code 2016)

(a)   Persons (other than carriers) to whom the exemptions of Section 11-303 are applicable shall maintain detailed, but not necessarily separate, records and inventories relating to drugs manufactured, purchased, sold, distributed and handled and retain all such records and inventories required by this subsection A for not less than two calendar years after the date of the transaction shown by such record and inventory.

(b)   Pharmacists shall, in addition to complying with the provisions of subsection (a), retain each prescription and written record of telephonic order for a drug filled by them, for not less than two calendar years immediately following the date of the filling or the date of the last refilling of such prescription whichever is the later date.

(Code 2016)

Persons required by Section 11-304 to keep files, inventories or records relating to drugs shall, upon the written request of a public officer or employee charged with the duty of enforcing laws relating to the handling, sale, and distribution of drugs;

(a)   Make such files, inventories or records available to such officer or employee, at all reasonable hours, for inspection and copying; and

(Code 2016)

It shall be unlawful for any person to sell, dispense, give away, or display any drug paraphernalia or simulated controlled substance or simulated drug to minors in or upon any premises. It shall also be unlawful for any person to sell, offer to sell, dispense, give away or display any drug paraphernalia or simulated controlled substance or simulated drug to persons other than minors in or upon any premises which:

(a)   Are premises open to minors, unless the drug paraphernalia, simulated controlled substances or simulated drugs are kept in such part of the premises that is not open to view by minors and 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 education or scientific purposes not be unlawful. Provided further, that nothing in this section shall be construed to prohibit the selling, dispensing, or giving away of such items by a practitioner or pharmacist to a patient for lawful purposes.

(b)   In addition to any penalty authorized by Section 15, a violation of Section 14 is hereby declared to be a public nuisance.

(Code 2016)

Any person violating Sections 11-302, 11-303, 11-304 or 11-305, shall be punished by a fine of not less than $100.00 nor more than $2,500.00 and be imprisoned not more than one year. In addition, any person under the age of 21 who is convicted of a violation of this article or diverted in lieu of further criminal proceedings shall be required to submit to and complete an alcohol and drug evaluation by a community based alcohol and drug safety action program certified pursuant to K.S.A. 8-1008 and amendments thereto and to pay a fee for such evaluation.

(Code 2016)