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Moorhead passes drug paraphernalia ban, businesses organize petition drive

By Bryce Haugen
Staff Writer

While some spectators smiled with satisfaction as they filed out of the Moorhead City Council meeting Monday night, others were incensed. A few left with tears in their eyes.

With a 5-3 vote after balanced discussion, the council banned what police and prosecutors deem drug paraphernalia, ending this phase of a more than four-month debate over an ordinance that aims to purge many products – from glass pipes to grinders to bongs – sold at five Moorhead smoke shops.

The last to vote, a pleased Council Member Nancy Otto cast the clinching fifth affirmative with extra commentary:  “Yes. Thank goodness!”

“I guess I’ll start looking for a new job,” Mellow Mood employee Toby Mulvihill said as he solemnly left the chamber just moments later.

But within a few minutes, the Facebook page of a group organized last summer to oppose the ban, lit up with talk about a petition drive to send the measure to voters.

“In the next few days we will be launching a campaign to gather 1800 signatures,” FargoMoorhead FreedomFighters said in a post on the group’s page, which has more than 1300 followers.

If the smoke shops submit at least 1750 valid signatures from registered Moorhead voters within 30 days, the ordinance would be delayed until residents decided its fate on next November’s general election ballot.

Otherwise, in 30 days, the law would make it a misdemeanor with up to a $1000 fine and 90 days in jail to sell products “if that person knows or should reasonably know” that they will be used illegally. Simple possession of paraphernalia, considered as items “used, intended for use, or designed for use” for drugs, would carry a petty misdemeanor fine of $300. Moorhead police and the Clay County Attorney’s Office modeled the law after North Dakota code and similar ordinances throughout Minnesota.

“This is going to be an interesting exercise in direct democracy,” said Council Member Mark Altenburg, who voted against the ordinance, along with colleagues Diane Wray Williams and Luther Stueland. “They’ve got a race against time now … I wish them the best of luck.”

After the vote Monday, some city leaders voiced relief the issue was finally off their agenda. The council easily passed the proposal in July, but in a split tally two weeks later, delayed it for three months. On Nov. 14, the council voted down the ban before immediately agreeing to delay it again until Monday’s meeting to allow absent member Greg Lemke to vote.

“We’ve said everything that needs to be said on this issue,” said Mayor Mark Voxland after approval Monday. “It was overripe.”

The political fight, however, enters a new realm at the end of the week. That’s when the petition will be available at all Moorhead smoke shops, Discontent owner Tom Tepley said Tuesday. One of his lawyers is drafting the language, but Tepley said he wouldn’t lead the petition drive.

“There’s a burnout factor with me,” he said, “and we’re fast approaching that.”

Marc Kurzman, a lawyer for Discontent and Pyromaniacs, said FM Freedom Fighters would coordinate, gathering John Hancocks at shops, homes and college campuses.

Since at most 15 percent of Mother’s Music’s inventory would be affected, investing resources into the effort – besides collecting signatures at the store – wouldn’t be worth it, owner Brady Bredell, the Freedom Fighters founder, said Tuesday.

Ty Nelson, a Mellow Mood manager, said he plans to amass signatures at the chain’s two Moorhead locations and elsewhere in the city. To be certain to secure enough valid names, “we’ll need to get way more than (1750),” he said.

Just like it had been at previous meetings, Monday’s debate was passionate and divided, though it was much shorter. Four members of the public spoke in support, calling for the city to send an anti-drug message consistent with Fargo law. Four others spoke in opposition, condemning the measure as ineffective and unconstitutionally vague.

Bjorn Kvernstuen wondered how the ordinance could be consistently enforced, pointing out that other Minnesota and North Dakota cities, such as Minneapolis and Grand Forks, have the same law yet still have smoke shops like Moorhead’s. The Concordia College senior said the council should also consider the tax revenue from affected businesses – and the up to 40 jobs that could be lost.

“What will be left of downtown Moorhead?,” Kvernstuen asked.

But Teresa Norwig, a Moorhead attorney, said drug use’s affect on the community is hard to quantify. “What are the hidden costs?”

Banning drug paraphernalia doesn’t address the real problem – chemical dependency – one bit, said John Hallman, 25.

“It’s putting a band aid on a gun shot wound,” he told the council.

Clay County Public Health’s Gina Nolte urged passage to “create an environment that is healthy for our community.”

After losing his reelection contest earlier this month, Lemke said he would prefer that the new council – with three different members – resolve the paraphernalia issue. But he declined to ask for another delay Monday.  “It didn’t seem like there was support for that,” Lemke said after the vote.

Instead, he gave a several minute speech explaining his crucial “yes.”

“I don’t think this is going to stop people from using drugs,” the Minnesota State University Moorhead public safety director and former Fargo DARE officer said. “What I think is that it makes it more difficult.”

Shop owners’ and patrons’ claims that the products are used for tobacco and herbs runs counter to his lengthy law enforcement experience, Lemke said.

Altenburg said the Northfield, Minn., council made the right move when it killed a nearly identical measure in October after police and lawyers agreed it was unenforceable.

City Manager Michael Redlinger told the council the League of Minnesota Cities has talked about supporting a statewide drug paraphernalia law in the next legislative session.

Though he didn’t make a motion to delay, Altenburg said Moorhead should wait for lawmakers to craft a solution next year instead of proceeding at a local level.

“The legislature has this in their sights,” he said moments before the vote.

Altenburg had been pushing changes to city tobacco licensing, signage and zoning rules, but those ideas gained little traction among his colleagues. The ban killed any hopes of those reforms, he said. “The shops are going to fight us every step of the way.”

At an earlier budget meeting Monday, the council proposed cuts to youth programs for at-risk kids. Those sports and arts opportunities prevent far more drug use than the paraphernalia law would, said Heidi Durand, the only incoming council member who didn’t support the ordinance.

“I support proactive measures not reactive measures,” she said. 

After the vote Monday, Chief David Ebinger said he hopes police can persuade businesses to voluntarily comply with the new law to limit local access to drug gear and discourage use.

“Our intent is to simply get a regional standard that matches the rest of the area,” he said. “We’re not looking to make arrests.”

And Discontent and Pyromaniacs are not looking to remove any items from their shelves.

“I’m not going to change a thing,” Tepley said Monday night. “We’ll wait and see what (the police) do.”

Kurzman, the lawyer, said the stores would defend themselves in court if any products were unconstitutionally seized, but “we’re not looking to pick a fight.”

It would be unwise to enforce the ordinance in a way that could cost taxpayers money in litigation, he said, especially considering the budget cuts Moorhead faces.

Mellow Mood’s Nelson said he would work with police to get rid items considered illegal. “Hopefully, they don’t consider everything we sell in that category.”

Mother’s Music will get rid of some inventory, Bredell said, but so far police haven’t indicated what would and would not be outlawed.

“They weren’t transparent at all,” Bredell said.

Besides the petition drive, businesses found another piece of common ground this week: Not leaving Moorhead.

“I’m going to stay right where I am,” Tepley said.

Resolving the drug paraphernalia issue “is going to take months, if not years,” Altenburg said.

“Market forces might drive (the shops) out of town,” he said at the meeting. “But I don’t think this ordinance will.”

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