§ 17-10-060. Enforcement.

(a)

If an enforcement officer has probable cause to believe a violation of this article has occurred, the enforcement officer shall obtain a sample of the substance believed to be spice. The sample shall be tested by methods commonly utilized by law enforcement labs to determine whether a substance is a controlled substance under state law. If the test determines that the substance is spice, the director of public safety shall have the authority to issue a cease and desist order and notice of violation to the business operator. Thereafter, an enforcement officer shall serve the cease and desist order and notice of violation upon the business operator and seize the entire inventory of spice from the business. The cease and desist order shall be filed with the city clerk. When the cease and desist order and notice of violation is delivered to the business, if a enforcement officer has probable cause to believe that the spice has been relabeled, repackaged or incorporated into other substances, those substances shall also be seized and tested. If the test is negative, the inventory shall be returned to the business. The transfer of ownership or control of the business does not avoid the seizure authorized by this paragraph.

(b)

Upon receipt of the cease and desist order and notice of violation by the business operator, the business shall immediately allow and not interfere with the seizure of the inventory which is spice or is reasonably believed to be spice that has been relabeled, repackaged or incorporated into other substances. Any interference with the seizure is a violation of this article punishable pursuant to § 1-01-100 of Alamogordo Municipal Code, and not subject to appeal to a hearing officer.

(c)

If the business receives a second cease and desist order and notice of violation in a period of five (5) years from receipt of the first cease and desist order and notice of violation, the business shall close and cease transacting business with the public for the next ten (10) full twenty-four-hour calendar days during which time an enforcement officer, in cooperation with other agencies if required, shall inspect the premises and seize and destroy the spice or any relabeled, repackaged or reincorporated spice substances. The transfer of ownership or control of the business does not avoid the closure and inspection authorized by this paragraph. No inventory, merchandise, personal property, chattel property or other property shall be received by or taken off the business premises during closure unless authorized by an enforcement officer.

(d)

Upon a third or subsequent violation of this article within five (5) years from receipt of the second cease and desist order and notice of violation, the city clerk shall refuse to renew or grant a business registration under article 17-01 to the business for a period of one (1) year from the date of the receipt of the third or subsequent cease and desist order and notice of violation or decision of the hearing officer against the business if a hearing takes place. The transfer of ownership or control of the business does not avoid the operation of this paragraph.

(e)

The city shall have the authority to seek an injunction to compel compliance with this article on grounds that the business is causing irreparable harm to the community by distributing spice.

(Ord. No. 1422, § 1, 8-14-12)