St. Louis Park paraphernalia ban in the pipeline

YeSmart & Tobacco sells a variety of pipes, some of which could be banned under a St. Louis Park proposed ordinance. (Sun staff photo by Seth Rowe)

YeSmart & Tobacco sells a variety of pipes, some of which could be banned under a St. Louis Park proposed ordinance. (Sun staff photo by Seth Rowe)

St. Louis Park has raised concerns about a store’s pipe collection and is preparing to take action.

Along with tobacco and convenience store items, YeSmart & Tobacco at the Texa-Tonka Shopping Center in St. Louis Park provides a variety of pipes for sale. Ornate glass pipes with a variety of colors in the shapes of a dolphin, alligator, frog or a more typical glass pipe shape rest on shelves behind a clear glass counter. Wooden pipes that look like miniature guitars are also available, along with small pipes designed to look like cigarettes.

Behind the checkout area are hookahs and glass water pipes.

The products could be banned if an ordinance under consideration is approved. The St. Louis Park City Council is poised to take a first vote on a new drug paraphernalia ordinance Tuesday, Feb. 19, after a federal judge upheld a similar ordinance in Moorhead as constitutional in January.

Minnesota state statute bans paraphernalia only if it contains residue from an illegal drug. The St. Louis Park ordinance would ban a long list of “objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing controlled substances,” including “metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes.” The ordinance would ban the sale or possession of such items in St. Louis Park even if they had not been used with drugs.

The lengthy proposed ordinance would also ban scales and balances used, intended for use or designed for use in weighing or measuring controlled substances. Also banned would be containers and other objects for storing or concealing controlled substances. The measure also addresses kits relating to plant species associated with controlled substances, separation gins and sifters associated with marijuana, bongs and many other objects associated with drug use.

The proposal lists 15 factors for determining whether an object would be considered drug paraphernalia, including statements by the owner or anyone controlling the object, prior convictions, proximity of the object to a controlled substance or another banned object, “the manner in which the object is displayed for sale,” and whether the owner is a legitimate supplier of tobacco products.

A Jan. 28 city staff report does not name YeSmart specifically, but states, “Only one retailer is known to currently be selling paraphernalia in the city. Past public complaints received raised concern over children being exposed to various types of paraphernalia being displayed on open shelves.”

St. Louis Park Director of Inspections Brian Hoffman, who prepared the report along with Police Chief John Luse, indicated the offending business was a Texa-Tonka convenience store that had been the subject of a past fire.

YeSmart, known at the time as Yes Mart, sustained a large fire in 2011.

“We licensed a business to do tobacco sales, and along with that is license to sell pipes for tobacco,” Hoffman said. “If it’s not really related to smoking tobacco, it creates a bit of a concern to us to be licensing what appears to be paraphernalia.”

St. Louis Park is not home to any major “head shops,” or stores specifically specializing in items of interest to drug users, Hoffman said. The city wants to prevent the possibility of such a store opening along a major thoroughfare, like Excelsior Boulevard.

“It’s probably not the image St. Louis Park wants, with a window full of bongs,” Hoffman said.

Despite the report’s statement about “one retailer,” Hoffman stressed in an interview, “It isn’t targeted against any one place. It’s about retail sales throughout the city of paraphernalia and trying to prevent it from being done in such a way that it presents a negative image and the things that may go with it.”

Luse did not return a call seeking comment from the St. Louis Park Police Department’s perspective.

Surprise to owner

YeSmart owner Ihab Elashri said no one from the city had mentioned the proposed ordinance to him, despite a city inspector visiting his store three days before he learned of the proposal from a reporter.

“The city was here three days ago, and they said you’re fine, OK,” Elashri said. “They didn’t even mention anything for me to do.”

When Elashri purchased YeSmart about two months ago, he said he received a St. Louis Park business license without any issues. He said the inventory of pipes came with the store when he bought it.

“When I went to the city before I got the license, I said, ‘Is there anything I need to know about before I take over from the previous owner?’” Elashri said. “They came to the store and said it’s OK. According to that, I paid for the inventory for everything they had.”

Elashri wondered what he could do with the product he had already purchased.

“If they don’t want it, it’s fine,” Elashri said. “It’s OK, but at the same time I’m going to lose a lot of money. So why didn’t they tell me when I got my license so I could give it to the previous owner?”

He argued that limiting his ability to sell items allowed by state statute is unfair. He said the items at his store are intended for use with tobacco and that such items are not unusual at tobacco shops.

“Any tobacco store, you’re going to see it,” Elashri said. “It’s not like stuff they use for marijuana.”

However, his store, which smelled strongly of incense available for sale, recently contained a large pipe on a back shelf displaying a marijuana leaf and another that said, “420,” a number commonly associated with marijuana use.

The store also included grinders behind a counter and devices that could be used for hiding material, such as a heavy container that looked like a large, unopened Arizona Beverage Co. tea can but with a lid that screwed off to reveal an empty space within the fake can.

The proposed ordinance would not be intended to ban Sherlock Holmes-style pipes, Hoffman said.

“Our city attorney believes the city ordinance does allow for traditional tobacco pipes to be sold,” Hoffman said. “Any place that sells loose tobacco may be selling (traditional) pipes like this. This ordinance would not change that.”

For drugs or tobacco?

In upholding the Moorhead ordinance as constitutional, Judge Michael J. Davis relied upon a U.S. Supreme Court case called “Posters ‘N’ Things Ltd. v. United States” that related to a federal statute relating to interstate and foreign commerce that Davis called very similar to the Moorhead ordinance.

Davis is the chief judge of the United States District Court District of Minnesota.

The 1993 federal case related to the Mail Order Drug Paraphernalia Control Act, enacted federally in 1986, which bans the use of an “interstate conveyance” as a means of selling drug paraphernalia, among other provisions. The act included much of the same language proposed in the St. Louis Park ordinance.

The U.S. Supreme Court used many criteria in determining that the statute was not unconstitutionally vague. Among other findings, the court noted the statute contained an exemption for items “traditionally intended for use with tobacco products.”

The proposed St. Louis Park ordinance does not include an exemption for traditional tobacco products in a list of exceptions, which includes items used by law enforcement for educational purposes and uses permitted under the Uniform Controlled Substances Act.

However the section relating to drug paraphernalia evidence states courts and authorities should consider “the existence and scope of legitimate uses for the object in the community” and expert testimony about the object’s use.

In the Moorhead case, lawyers for a store that had been known as Discontent argued Moorhead police could not establish the pipes the store had sold were designed and used primarily for use with illegal drugs because “police did not have documented experience with legal smoking herbs and tobacco,” Davis’s ruling notes.

The judge responded, “The officers have not opined that the pipes at issue cannot theoretically be used for a lawful use. Rather, the police officers concluded that certain items in Plaintiffs’ store met the definition of ‘drug paraphernalia’ based on their knowledge and experience that the items are designed for use with illegal drugs and are used almost exclusively for that unlawful purpose.”

Davis’s opinion states documents provided by attorneys for the Moorhead store “merely provide evidence that the objects also have legal uses” but do not contradict police statements that they are commonly used for illegal drugs.

Evidence of legal uses could be relevant as a defense to a prosecution based on the ordinance if defendants wished to attempt to show that they should not have reasonably known the object would be used for an illegal purpose, Davis’s ruling states. However, no prosecution existed at the time of the lawsuit, and Davis ruled the arguments did not undermine the ordinance’s constitutionality.

The city inspections and police staff presented the proposed St. Louis Park ordinance to the City Council during a Jan. 28 study session, shortly after Davis’s Jan. 10 ruling.

Hoffman said, “They said let’s bring it to the first reading and see what happens.”

The Feb. 19 council meeting is set for 7:30 p.m. at City Hall, 5005 Minnetonka Blvd.

Contact Seth Rowe at seth.rowe@ecm-inc.com

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