05 LC 28
2099
House
Bill 216
By:
Representatives Neal of the
1st,
Ralston of the
7th,
Miller of the
106th,
Burmeister of the
119th,
Sheldon of the
105th,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 13 of Title 16 of the Official Code of Georgia Annotated, relating
to controlled substances, so as to limit the sale and manner of sale of products
containing pseudoephedrine; to provide for exceptions; to provide for mitigation
of punishment under certain circumstances; to provide for penalties; to restrict
the sale, transfer, manufacture, purchase for resale, and furnishing of certain
precursor chemicals; to provide for definitions; to authorize the State Board of
Pharmacy to promulgate certain rules and regulations regarding precursor
chemicals and licenses and permits; to provide for licensing and permitting of
persons who sell, transfer, manufacture, purchase for resale, or otherwise
furnish or possess precursor chemicals; to require certain records to be
maintained; to provide for exceptions; to provide for certain forfeitures; to
provide for penalties; to provide for certain reports; to provide that it is
illegal for a person to possess any substance with the intent to use such
substance in the manufacture of a Schedule I or Schedule II controlled substance
or to knowingly convey such substance to another for use in the manufacture of a
Schedule I or Schedule II controlled substance; to provide for certain
considerations with regard to determining whether such substances were possessed
illegally; to provide for exceptions; to provide for penalties; to reduce the
quantities of methamphetamine and amphetamine necessary for increased penalties
for trafficking in methamphetamine and amphetamine; to provide for related
matters; to provide an effective date; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
13 of Title 16 of the Official Code of Georgia Annotated, relating to controlled
substances, is amended by adding a new subsection (b.1) to Code Section
16-13-30.3, relating to possession of substances containing ephedrine,
pseudoephedrine, and phenylpropanolamine, to read as follows:
"(b.1)(1)
On and after July 1, 2005, products whose sole active ingredient is
pseudoephedrine cannot be offered for retail sale by self-service, but must be
stored behind a counter or other barrier so that such products are not
accessible by the public and are only accessible by a retail store
employee.
(2)
On and after July 1, 2005, no person shall deliver in any single over the
counter sale more than three packages or any number of packages that contain a
combined total of more than nine grams of any product containing pseudoephedrine
as the sole active ingredient or in combination with other active
ingredients.
(3)
This subsection shall not apply to:
(A)
Pediatric products labeled pursuant to federal regulation as primarily intended
for administration to children under 12 years of age according to label
instructions;
(B)
Products that the Georgia Board of Pharmacy, upon application of a manufacturer,
exempts because the product is formulated in such a way as to effectively
prevent the conversion of the active ingredient into methamphetamine or its
salts or precursors.
(4)
This subsection shall preempt all local ordinances or regulations governing the
possession by individuals and sale by a retail distributor of over the counter
products containing pseudoephedrine.
(5)
A retailer who is the general owner or operator of an establishment where
pseudoephedrine products are available for sale who violates this subsection
shall not be penalized pursuant to this subsection if the retailer documents
that a Georgia Meth Watch employee training program was conducted by or with the
approval of the Georgia Council on Substance Abuse.
(6)
A person who violates paragraph (1) or (2) of this subsection shall be guilty of
a misdemeanor on the first offense and a misdemeanor of a high and aggravated
nature on a second and subsequent
offense."
SECTION
2.
Said
chapter is further amended by adding a new Code Section 16-13-30.4 to read as
follows:
"16-13-30.4.
(a)
As used in this Code section and unless otherwise specified, the
term:
(1)
'Board' or 'Board of Pharmacy' shall mean the Georgia State Board of
Pharmacy.
(2)
'Listed precursor chemical' means a chemical substance specifically designated
as such by the Georgia State Board of Pharmacy that, in addition to legitimate
uses, is used in the unlawful manufacture of a controlled substance or
controlled substances.
(3)
'Person' means any individual, corporation, partnership, association, or other
entity which manufactures, sells, transfers, or possesses a listed precursor
chemical.
(b)
The Board of Pharmacy shall, within one year after the effective date of this
Code section, designate by rule listed precursor chemicals. The Board of
Pharmacy may subsequently by rule add chemicals as listed precursor chemicals
following the criteria set forth in paragraph (2) of subsection (a) of this Code
section and may also by rule delete any substance previously named as a listed
precursor chemical. In no event shall a chemical also be designated as a listed
precursor chemical if it has been determined to be a controlled substance
pursuant to this chapter.
(c)
If any chemical is designated or deleted as a listed precursor chemical under
federal law and notice thereof is given to the Board of Pharmacy, the board
shall similarly list or delete the substance under this Code section after the
expiration of 30 days from publication in the federal register of a final rule
or order designating or deleting such substance as a listed precursor
chemical.
(d)
Until the Board of Pharmacy adopts a rule designating listed precursor chemicals
as required by subsection (b) of this Code section, the following chemicals or
substances are hereby deemed listed precursor chemicals:
(1)
Ephedrine, its salts, optical isomers, and salts of optical
isomers;
(2)
Norpseudoephedrine, its salts, optical isomers, and salts of optical isomers;
and
(3)
Pseudoephedrine, its salts, optical isomers, and salts of optical
isomers.
(e)(1)
A manufacturer, wholesaler, retailer, or other person who sells, transfers,
manufactures, purchases for resale, or otherwise furnishes any listed precursor
chemical must first obtain a license annually from the Board of
Pharmacy.
(2)(A)
The procedure for obtaining a license to sell, transfer, manufacture, purchase
for resale, or otherwise furnish a listed precursor chemical shall be as
follows:
(i)
Submit an application to the Board of Pharmacy on forms prescribed and furnished
by the Board of Pharmacy; and
(ii)
Demonstrate a legitimate reason to sell, transfer, manufacture, purchase for
resale, or otherwise furnish listed precursor chemicals.
(B)
The content of the application for a license shall include, but not be limited
to, the following information:
(i)
Name of business;
(ii)
Physical address and mailing address of business;
(iii)
Telephone number of business;
(iv)
Names and physical home addresses of business owners;
(v)
Location of all storage facilities used by the business for listed precursor
chemicals;
(vi)
Identification of listed precursor chemicals to be sold, transferred,
manufactured, purchased for resale, or otherwise furnished; and
(vii)
Criminal history of all business owners.
(3)
A licensee shall make an accurate and legible record of any transaction of
listed precursor chemicals and maintain such record together with the following
records for a period of at least two years:
(A)
Inventory on hand;
(B)
Purchase receipts;
(C)
Manufacturing records including the date and quantity of any listed precursor
chemicals manufactured, the quantity of listed precursor chemicals used in
manufacturing any other substance or product, and the inventory on hand of
listed precursor chemicals after the manufacturing of any other substance or
product;
(D)
Copies of the Board of Pharmacy licenses or permits; and
(E)
Records of substance disposal.
(f)(1)
Any person having a legitimate need for using a listed precursor chemical shall
apply in person to the Board of Pharmacy for a permit to possess such chemical
each time said chemical is obtained.
(2)
The following must be submitted in person to the Board of Pharmacy to receive a
permit for possession of listed precursor chemicals:
(A)
A
driveŕs
license number or other personal identification certificate number; date of
birth; residential or mailing address, other than a post office box number; and
a
driveŕs
license or personal identification card issued by the Department of Motor
Vehicle Safety which contains a photograph of the recipient;
(B)
In the event the applicant is a corporation, the information in this paragraph
shall be required of the person making application for the permit. In addition,
the person making application for the permit on behalf of a corporation shall
disclose his or her relationship to the corporation;
(C)
The make, model, model year, state where licensed, and license number of the
motor vehicle owned and operated by the recipient;
(D)
The serial number of the permit issued in the name of the recipient by the Board
of Pharmacy pursuant to this Code section, which shall be obtained from personal
observation of the permit;
(E)
A complete description of how the chemical is to be used; and
(F)
The location where the chemical is to be stored and used.
(3)
The permit shall consist of three parts, including:
(A)
The original to be retained by the Board of Pharmacy;
(B)
A copy to be retained by the manufacturer, wholesaler, retailer, or other person
furnishing listed precursor chemicals; and
(C)
A copy to be attached to the container of the listed precursor chemical and to
be kept with the chemical at all times.
(g)
A license or permit, obtained pursuant to this Code section, shall be denied,
suspended, or revoked by the Board of Pharmacy upon finding that the licensee or
permit holder has:
(1)
Furnished false or fraudulent material information in any application filed
under this Code section;
(2)
Been convicted of a crime under any state or federal law relating to any
controlled substance;
(3)
Had his or her federal registration suspended or revoked to manufacture,
distribute, or dispense controlled substances;
(4)
Violated the provisions of Chapter 4 of Title 26; or
(5)
Failed to maintain effective controls against the diversion of listed precursor
chemicals to unauthorized persons or entities.
(h)(1)
Any person who sells, transfers, purchases for resale, or otherwise furnishes to
a person in this state a listed precursor chemical shall submit a report of the
transaction on a form obtained from the Board of Pharmacy that includes the
information required by paragraph (2) of subsection (f) of this Code
section.
(2)
Upon the request of any manufacturer, wholesaler, retailer, or other person who
sells, transfers, purchases for resale, or otherwise furnishes a listed
precursor chemical, the Board of Pharmacy shall supply a form for the submission
of:
(A)
The report required by paragraph (1) of this subsection;
(B)
The name and measured amount of the listed precursor chemical delivered;
and
(C)
Such other information as the board may require pursuant to the rules and
regulations of the Board of Pharmacy.
(i)(1)
Any licensee or permit holder who discovers a loss or theft of or disposes of a
listed precursor chemical shall:
(A)
Submit a report of the loss, theft, or disposal to the Board of Pharmacy no
later than the third business day after the date the manufacturer, wholesaler,
retailer, or other person furnishing listed precursor chemicals discovers the
loss or theft or after the actual disposal; and
(B)
Include the amount of loss, theft, or disposal in the report. Any disposal of
listed precursor chemicals must adhere to the rules and regulations of the
United States Environmental Protection Administration and shall be performed at
the expense of the licensee or permit holder.
(2)
A manufacturer, wholesaler, retailer, or other person who sells, transfers,
possesses, uses, or otherwise furnishes any listed precursor chemical
shall:
(A)
Maintain records as specified in paragraph (3) of subsection (e) of this Code
section or as prescribed by the rule of the Board of Pharmacy;
(B)
Permit law enforcement authorities to conduct on-site audits, inspections, or
inventories and inspect all records made in accordance with this Code section at
any reasonable time; and
(C)
Cooperate with the audit, inspection, inventory, or copying of any
records.
(j)
The Board of Pharmacy may adopt reasonable rules and regulations to effectuate
the provisions of this Code section. The board is further authorized to charge
reasonable fees to defray expenses incurred in issuing any licenses or permits,
maintaining any records or forms required by this Code section, and the
administration of the provisions of this Code section.
(k)(1)
The provisions of this Code section shall not apply to the sale or transfer of
products which include a listed precursor chemical if the products may be sold
lawfully with a prescription or over the counter without a prescription under
the federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301, et seq.) or
under a rule adopted pursuant to that act.
(2)
Notwithstanding any other provision of this Code section to the contrary, no
person shall be required to obtain a license or permit for the sale, receipt,
transfer, manufacture, or possession of a listed precursor chemical
when:
(A)
Such person is a duly licensed physician, dentist, veterinarian, or pharmacist
when the sale, receipt, transfer, manufacture, or possession of such listed
precursor chemical is a transaction otherwise lawfully authorized;
(B)
Such lawful distribution takes place in the usual course of business between
agents or employees of a single regulated person; or
(C)
A listed precursor chemical is delivered to or by a common or contract carrier
for carriage in the lawful and usual course of the business of the common or
contract carrier or to or by a warehouseman for storage in the lawful and usual
course of the business of the warehouseman.
(l)
All listed precursor chemicals that have been or that are intended to be sold,
transferred, manufactured, purchased for resale, possessed or otherwise
transferred in violation of a provision of this Code section shall be subject to
forfeiture to the state and no property right shall exist in them.
(m)(1)
Any person who manufactures, sells, transfers, receives, or possesses a listed
precursor chemical violates this Code section if the person:
(A)
Knowingly fails to comply with the reporting requirements of this Code
section;
(B)
Knowingly makes a false statement in a report or record required by this Code
section or the rules adopted thereunder; or
(C)
Is required by this Code section to have a listed precursor chemical license or
permit, is a person as defined by this Code section, and knowingly or
deliberately fails to obtain such a license or permit.
(2)
It shall be illegal for a person to possess, sell, transfer, or otherwise
furnish a listed precursor chemical if such person possesses, sells, transfers,
or furnishes the substance with the knowledge or intent that the substance will
be used in the unlawful manufacture of a controlled substance.
(3)
A person who violates this Code section shall be guilty of a felony and, upon
conviction thereof, shall be punished by imprisonment for not less than one nor
more than 15 years or by a fine not to exceed $100,000.00, or
both."
SECTION
3.
Said
chapter is further amended by adding a new Code Section 16-13-30.6 to read as
follows:
"16-13-30.6.
(a)
It shall be illegal for a person to possess, whether acquired through theft or
other means, any substance with the intent to:
(1)
Use such substance in the manufacture of a Schedule I or Schedule II controlled
substance; or
(2)
To knowingly convey such substance to another for use in the manufacture of a
Schedule I or Schedule II controlled substance.
(b)
In determining whether a particular substance is possessed with the intent
required to violate subsection (a) of this Code section, the court or other
authority making such a determination shall, in addition to all other logically
relevant factors, consider the following:
(1)
Statements by the owner or anyone in control of the substances concerning its
use;
(2)
Prior convictions, if any, of the owner or of anyone in control of the
substances for violation of any state or federal law relating to the sale or
manufacture of controlled substances;
(3)
Instructions or descriptive materials of any kind accompanying the substance or
found in the
owneŕs
or controlling
persońs
possession concerning, explaining, or depicting its use;
(4)
The manner in which the substance is displayed or offered for sale;
(5)
The quantity and location of the substance considered in relation to the
existence and scope of legitimate uses for the substance in the community;
and
(6)
Expert testimony concerning the
substancés
use.
(c)
This Code section shall not apply where possession was by a person authorized by
law to dispense, prescribe, manufacture, or possess the substance in
question.
(d)
A person who violates this Code section shall be guilty of a felony and, upon
conviction thereof, shall be punished by imprisonment for not less than one nor
more than fifteen years or by a fine not to exceed $100,000.00, or
both."
SECTION
4.
Said
chapter is further amended by striking subsections (e) and (f) of Code Section
16-13-31, relating to trafficking in methamphetamine and amphetamine, and
inserting in lieu thereof new subsections (e) and (f) to read as
follows:
"(e)
Any person who knowingly sells, delivers, or brings into this state or has
possession of 28 grams or more of methamphetamine, amphetamine, or any mixture
containing either methamphetamine or amphetamine, as described in Schedule II,
in violation of this article commits the felony offense of trafficking in
methamphetamine or amphetamine and, upon conviction thereof, shall be punished
as follows:
(1)
If the quantity of methamphetamine, amphetamine, or a mixture containing either
substance involved is 28 grams or more, but less than
200
100
grams, the person shall be sentenced to a mandatory minimum term of imprisonment
of ten years and shall pay a fine of $200,000.00;
(2)
If the quantity of methamphetamine, amphetamine, or a mixture containing either
substance involved is
200
100
grams or more, but less than
400
300
grams, the person shall be sentenced to a mandatory minimum term of imprisonment
of 15 years and shall pay a fine of $300,000.00; and
(3)
If the quantity of methamphetamine, amphetamine, or a mixture containing either
substance involved is
400
300
grams or more, the person shall be sentenced to a mandatory minimum term of
imprisonment of 25 years and shall pay a fine of $1 million.
(f)
Any person who knowingly manufactures methamphetamine, amphetamine, or any
mixture containing either methamphetamine or amphetamine, as described in
Schedule II, in violation of this article commits the felony offense of
trafficking methamphetamine or amphetamine and, upon conviction thereof, shall
be punished as follows:
(1)
If the quantity of methamphetamine, amphetamine, or a mixture containing either
substance involved is less than
200
28
grams, the person shall be sentenced to a mandatory minimum term of imprisonment
of ten years and shall pay a fine of $200,000.00;
(2)
If the quantity of methamphetamine, amphetamine, or a mixture containing either
substance involved is
200
28
grams or more, but less than
400
300
grams, the person shall be sentenced to a mandatory minimum term of imprisonment
of 15 years and shall pay a fine of $300,000.00; and
(3)
If the quantity of methamphetamine, amphetamine, or a mixture containing either
substance involved is
400
300
grams or more, the person shall be sentenced to a mandatory minimum term of
imprisonment of 25 years and shall pay a fine of $1
million."
SECTION
5.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
SECTION
6.
All
laws and parts of laws in conflict with this Act are repealed.