HB2667 - 502R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 44, Arizona Revised Statutes, is amended by adding chapter 35, to read:

CHAPTER 35

RETAIL BUSINESS REGULATION

ARTICLE 1. GENERAL PROVISIONS

START_STATUTE44-7801. Prohibited sales; controlled substances analogues for human consumption; false and frivolous complaints; violation; classification; license suspension and revocation; affidavits; definitions

A. A retailer SHALL NOT INTENTIONALLY or knowingly sell a controlled substance analogue for human consumption.

B. ON RECEIPT OF A COMPLAINT THAT A retailer INTENTIONALLY or knowingly sold a controlled substance analogue for human consumption, a law enforcement agency or THE ATTORNEY GENERAL OR the COUNTY ATTORNEY SHALL INVESTIGATE WHETHER THE retailer HAS VIOLATED SUBSECTION A of this section. A PERSON WHO KNOWINGLY FILES A FALSE AND FRIVOLOUS COMPLAINT UNDER THIS SUBSECTION IS GUILTY OF A CLASS 3 MISDEMEANOR.

C. IF AFTER AN INVESTIGATION THE law enforcement agency, ATTORNEY GENERAL OR COUNTY ATTORNEY DETERMINES THAT THE COMPLAINT IS NOT FRIVOLOUS, THE ATTORNEY GENERAL or law enforcement agency SHALL NOTIFY THE APPROPRIATE COUNTY ATTORNEY TO BRING AN ACTION PURSUANT TO SUBSECTION D of this section IF THE COMPLAINT WAS ORIGINALLY FILED WITH THE ATTORNEY GENERAL or a law enforcement agency.

D. AN ACTION FOR A VIOLATION OF SUBSECTION A of this section SHALL BE BROUGHT AGAINST THE retailer BY THE COUNTY ATTORNEY IN THE COUNTY WHERE THE controlled substance analogue was sold for human consumption. THE COUNTY ATTORNEY SHALL NOT BRING AN ACTION AGAINST ANY retailer FOR ANY VIOLATION OF SUBSECTION A of this section THAT OCCURS BEFORE JANUARY 1, 2013. A SECOND VIOLATION OF THIS SECTION SHALL BE BASED ONLY ON the sale of a controlled substance analogue for human consumption AFTER AN ACTION HAS BEEN BROUGHT FOR A VIOLATION OF SUBSECTION A of this section.

E. FOR ANY ACTION IN SUPERIOR COURT UNDER THIS SECTION, THE COURT SHALL EXPEDITE THE ACTION, INCLUDING ASSIGNING THE HEARING AT THE EARLIEST PRACTICABLE DATE.

F. ON A FINDING OF A VIOLATION OF SUBSECTION A of this section:

1. FOR A FIRST VIOLATION DURING A THREE-YEAR PERIOD THAT IS A KNOWING VIOLATION OF SUBSECTION A, THE COURT:

(a) SHALL ORDER THE retailer TO TERMINATE THE sale OF ALL controlled substance analogues for human consumption.

(b) SHALL ORDER THE retailer TO BE SUBJECT TO A THREE-YEAR PROBATIONARY PERIOD.

(c) SHALL ORDER THE retailer TO FILE A SIGNED SWORN AFFIDAVIT WITH THE COUNTY ATTORNEY WITHIN THREE BUSINESS DAYS AFTER THE ORDER IS ISSUED. THE AFFIDAVIT SHALL STATE THAT THE retailer HAS TERMINATED THE practice of selling controlled substance analogues for human consumption AND THAT THE retailer WILL NOT INTENTIONALLY OR KNOWINGLY sell controlled substance analogues for human consumption. THE COURT SHALL ORDER THE APPROPRIATE AGENCIES TO SUSPEND ALL LICENSES SUBJECT TO THIS SUBDIVISION THAT ARE HELD BY THE retailer IF THE retailer FAILS TO FILE A SIGNED SWORN AFFIDAVIT WITH THE COUNTY ATTORNEY WITHIN THREE BUSINESS DAYS AFTER THE ORDER IS ISSUED. ALL LICENSES THAT ARE SUSPENDED UNDER THIS SUBDIVISION SHALL REMAIN SUSPENDED UNTIL THE retailer FILES A SIGNED SWORN AFFIDAVIT WITH THE COUNTY ATTORNEY. NOTWITHSTANDING ANY OTHER LAW, ON FILING OF THE AFFIDAVIT THE SUSPENDED LICENSES SHALL BE REINSTATED IMMEDIATELY BY THE APPROPRIATE AGENCIES. FOR THE PURPOSES OF THIS SUBDIVISION, THE LICENSES THAT ARE SUBJECT TO SUSPENSION UNDER THIS SUBDIVISION ARE ALL LICENSES THAT ARE HELD BY THE retailer AND THAT ARE NECESSARY TO OPERATE THE retailer's BUSINESS AT THE retailer's BUSINESS LOCATION WHERE THE controlled substance analogue was sold for human consumption. IF A LICENSE IS NOT NECESSARY TO OPERATE THE retailer's BUSINESS AT THE SPECIFIC LOCATION WHERE THE controlled substance analogue was sold for human consumption, BUT A LICENSE IS NECESSARY TO OPERATE THE retailer's BUSINESS IN GENERAL, THE LICENSES THAT ARE SUBJECT TO SUSPENSION UNDER THIS SUBDIVISION ARE ALL LICENSES THAT ARE HELD BY THE retailer AT THE retailer's PRIMARY PLACE OF BUSINESS. ON RECEIPT OF THE COURT'S ORDER AND NOTWITHSTANDING ANY OTHER LAW, THE APPROPRIATE AGENCIES SHALL SUSPEND THE LICENSES ACCORDING TO THE COURT'S ORDER. THE COURT SHALL SEND A COPY OF THE COURT'S ORDER TO THE ATTORNEY GENERAL AND THE ATTORNEY GENERAL SHALL MAINTAIN THE COPY PURSUANT TO SUBSECTION G of this section.

(d) MAY ORDER THE APPROPRIATE AGENCIES TO SUSPEND ALL LICENSES DESCRIBED IN SUBDIVISION (c) OF THIS PARAGRAPH THAT ARE HELD BY THE retailer FOR NOT TO EXCEED TEN BUSINESS DAYS. THE COURT SHALL BASE ITS DECISION TO SUSPEND UNDER THIS SUBDIVISION ON ANY EVIDENCE OR INFORMATION SUBMITTED TO IT DURING THE ACTION FOR A VIOLATION OF THIS SUBSECTION AND SHALL CONSIDER THE FOLLOWING FACTORS, IF RELEVANT:

(i) THE quantity of controlled substance analogues sold by the retailer for human consumption.

(ii) ANY PRIOR MISCONDUCT BY THE retailer.

(iii) THE DEGREE OF HARM RESULTING FROM THE VIOLATION.

(iv) WHETHER THE retailer MADE GOOD FAITH EFFORTS TO COMPLY WITH ANY APPLICABLE REQUIREMENTS.

(v) THE DURATION OF THE VIOLATION.

(vi) THE ROLE OF THE DIRECTORS, OFFICERS OR PRINCIPALS OF THE retailer IN THE VIOLATION.

(vii) ANY OTHER FACTORS THE COURT DEEMS APPROPRIATE.

2. FOR A FIRST VIOLATION DURING A FIVE-YEAR PERIOD THAT IS AN INTENTIONAL VIOLATION OF SUBSECTION A, THE COURT SHALL:

(a) ORDER THE retailer TO terminate the sale of all controlled substance analogues for human consumption.

(b) ORDER THE retailer TO BE SUBJECT TO A FIVE-YEAR PROBATIONARY PERIOD.

(c) ORDER THE APPROPRIATE AGENCIES TO SUSPEND ALL LICENSES DESCRIBED IN SUBDIVISION (d) OF THIS PARAGRAPH THAT ARE HELD BY THE retailer FOR A MINIMUM OF TEN DAYS. THE COURT SHALL BASE ITS DECISION ON THE LENGTH OF THE SUSPENSION UNDER THIS SUBDIVISION ON ANY EVIDENCE OR INFORMATION SUBMITTED TO IT DURING THE ACTION FOR A VIOLATION OF THIS SUBSECTION AND SHALL CONSIDER THE FOLLOWING FACTORS, IF RELEVANT:

(i) THE quantity of controlled substance analogues sold by the retailer for human consumption.

(ii) ANY PRIOR MISCONDUCT BY THE retailer.

(iii) THE DEGREE OF HARM RESULTING FROM THE VIOLATION.

(iv) WHETHER THE retailer MADE GOOD FAITH EFFORTS TO COMPLY WITH ANY APPLICABLE REQUIREMENTS.

(v) THE DURATION OF THE VIOLATION.

(vi) THE ROLE OF THE DIRECTORS, OFFICERS OR PRINCIPALS OF THE retailer IN THE VIOLATION.

(vii) ANY OTHER FACTORS THE COURT DEEMS APPROPRIATE.

(d) ORDER THE retailer TO FILE A SIGNED, SWORN AFFIDAVIT WITH THE COUNTY ATTORNEY within three business days after the order is issued. THE AFFIDAVIT SHALL STATE THAT THE retailer has terminated the practice of selling controlled substance analogues for human consumption AND THAT THE retailer WILL NOT INTENTIONALLY OR KNOWINGLY sell controlled substance analogues for human consumption. ALL LICENSES THAT ARE SUSPENDED UNDER THIS SUBDIVISION SHALL REMAIN SUSPENDED UNTIL THE retailer FILES A SIGNED, SWORN AFFIDAVIT WITH THE COUNTY ATTORNEY. FOR THE PURPOSES OF THIS SUBDIVISION, THE LICENSES THAT ARE SUBJECT TO SUSPENSION UNDER THIS SUBDIVISION ARE ALL LICENSES THAT ARE HELD BY THE retailer AND THAT ARE NECESSARY TO OPERATE THE retailer's BUSINESS AT THE retailer's BUSINESS LOCATION WHERE THE controlled substance analogue was sold for human consumption. IF A LICENSE IS NOT NECESSARY TO OPERATE THE retailer's BUSINESS AT THE SPECIFIC LOCATION WHERE THE controlled substance analogue was sold for human consumption, BUT A LICENSE IS NECESSARY TO OPERATE THE retailer's BUSINESS IN GENERAL, THE LICENSES THAT ARE SUBJECT TO SUSPENSION UNDER THIS SUBDIVISION ARE ALL LICENSES THAT ARE HELD BY THE retailer AT THE retailer's PRIMARY PLACE OF BUSINESS. ON RECEIPT OF THE COURT'S ORDER AND NOTWITHSTANDING ANY OTHER LAW, THE APPROPRIATE AGENCIES SHALL SUSPEND THE LICENSES ACCORDING TO THE COURT'S ORDER. THE COURT SHALL SEND A COPY OF THE COURT'S ORDER TO THE ATTORNEY GENERAL AND THE ATTORNEY GENERAL SHALL MAINTAIN THE COPY PURSUANT TO SUBSECTION G of this section.

3. FOR A SECOND VIOLATION OF SUBSECTION A of this section DURING THE PERIOD OF PROBATION, THE COURT SHALL ORDER THE APPROPRIATE AGENCIES TO PERMANENTLY REVOKE ALL LICENSES THAT ARE HELD BY THE retailer AND THAT ARE NECESSARY TO OPERATE THE retailer's BUSINESS AT THE retailer's BUSINESS LOCATION WHERE THE controlled substance analogue was sold for human consumption. IF A LICENSE IS NOT NECESSARY TO OPERATE THE retailer's BUSINESS AT THE SPECIFIC LOCATION WHERE THE controlled substance analogue was sold for human consumption, BUT A LICENSE IS NECESSARY TO OPERATE THE retailer's BUSINESS IN GENERAL, THE COURT SHALL ORDER THE APPROPRIATE AGENCIES TO PERMANENTLY REVOKE ALL LICENSES THAT ARE HELD BY THE retailer AT THE retailer's PRIMARY PLACE OF BUSINESS. ON RECEIPT OF THE ORDER AND NOTWITHSTANDING ANY OTHER LAW, THE APPROPRIATE AGENCIES SHALL IMMEDIATELY REVOKE THE LICENSES.

G. THE ATTORNEY GENERAL SHALL MAINTAIN COPIES OF COURT ORDERS THAT ARE RECEIVED PURSUANT TO SUBSECTION F of this section AND SHALL MAINTAIN A DATABASE OF THE retailers WHO HAVE A FIRST VIOLATION OF SUBSECTION A of this section AND MAKE THE COURT ORDERS AVAILABLE ON THE ATTORNEY GENERAL'S WEBSITE.

h. for the purposes of this section:

1. "controlled substance" has the same meaning prescribed in section 36-2501.

2. "Controlled substance analogue":

(a) Means a substance that:

(i) Has a chemical structure that is substantially similar to the chemical structure of a controlled substance included in Schedule I or II pursuant to Section 36-2512 or 36-2513.

(ii) Has a stimulant, depressant or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance included in schedule I or II pursuant to Section 36-2512 or 36-2513.

(b) Means a substance that, with respect to a particular person, the person represents or intends to have a stimulant, depressant or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance included in Schedule I or II pursuant to Section 36-2512 or 36-2513.

(i) A controlled substance.

(ii) Any substance for which there is an approved new drug application.

3. "retailer" means any individual, partnership, corporation, association or other legal relationship that engages in the business of selling new goods to retail buyers. END_STATUTE