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This Is Not Paraphernalia

Moorhead’s Debate to Define What Is and Is Not Paraphernalia Rages On

By Bryce Haugen
Contributing Writer

As Moorhead’s smoke shop skirmish enters a pivotal stage, policymakers and citizens are as divided as ever. Round 3 of the city government showdown is scheduled for Nov. 14 at 5:30 p.m. The venue: City Hall, Floor 1.

In Round 1 late July, a nearly unanimous council approved banning many smoking accessories police claim are used exclusively as drug paraphernalia. Thousands of targeted items such as one-hitters, grinders, bongs, chillums and other glass pipes fill stores clustered along Main Avenue. Three of Moorhead’s five head shops are just a few hundred feet from Fargo, which already prohibits these products.

The proposal provides a lengthier definition of drug paraphernalia than Minnesota statutes and explicitly bans smoke shop employees from selling products “if that person knows or should reasonably know” that the item will be used in an illegal way. It defines paraphernalia as items “used, intended for use, or designed for use” for illegal drugs, and mirrors North Dakota’s criminal code as well as similar ordinances in other Minnesota cities.

Shop owners and patrons fiercely oppose the proposal, while city law enforcement and county prosecutors just as fervently support it. Moorhead City Manager Michael Redlinger said comments he’s received have been mixed, with a few more voices of opposition than support.

The city council is also split. In Round 2 early August, it could have finalized the ordinance, but following a dramatic discussion – on a 5-4 vote – chose to delay it for three months.

At the August meeting, Moorhead Police Chief David Ebinger said the ordinance is a response to law enforcement complaints from surrounding communities about illegal products originating in the city. Police, he said, need this tool to “clarify what is already a state law,” and create uniformity in the metro area’s smoking accessory standards.

“[Moorhead’s] got a reputation as the place where you come for the things you want, if you’re a drug addict …,” Ebinger said at his office late last month. “I don’t want us to be the place where people come to service their iniquities.”

Council Member Mark Altenburg initially voted for the ordinance, then made the motion to table in August, and is now working with city staff to craft alternatives to consider at the Nov. 14 meeting. Ideally, he said, the council would direct city committees to scrutinize possible changes, and the council would vote on them later. One proposal is to revise city tobacco code, which if interpreted literally, doesn’t even require stores to have a license to sell smoking accoutrements.

“If we can’t even get the code right, we shouldn’t be passing this ordinance. We’ve got to fix this first,” said Altenburg, who is also pushing to restrict stores that make more than 90 percent of revenue from tobacco-related products to commercial and industrial areas. He said most of the complaints he’s heard are from neighbors of Pyromaniacs Smoke Shop, Mellow Mood and Mother’s Music, which are located in a mixed residential and commercial zone.

“It may not address the concerns of the chief for more tools,” Altenburg said, “but it will address the concerns of the citizens.”

The zoning rules wouldn’t apply to existing stores, said Moorhead City Attorney Brian Neugebauer, but Altenburg said he is looking to regulate future development.

At council meetings and in subsequent interviews, most head shop grumbles were directed at the Main Avenue Pyromaniacs store, both its conspicuous neon lighting – neighbor Matt Hansana, 22, called it “obnoxious” – and its clientele.

“This is not a good neighbor,” said Sue Kuhn, who lives in the same building, at the August meeting. Speaking later, her husband Arnie Kuhn, the real estate broker trying to sell vacant condos in the complex, implied that the store is responsible for the dearth of interest in the $200,000 units. “Illegal activities need to be stopped,” he told the council. “Give your police department the power to do that.”

Pyromaniacs owner, 22-year-old Yassin Wazwaz, of Woodbury, Minn., faces charges of selling synthetic marijuana after the July 1 state ban. He said he didn’t know the product was illegal, and he is willing to move to a new location voluntarily, preferably with city help for moving expenses.

“I just want to get my business back up and running without being harassed – my legitimate business,” said Wazwaz. He said he’s preparing to open a hookah bar in Moorhead and at his shop in south Fargo.

Across Main Avenue, Mellow Mood’s owner is also fighting synthetic marijuana charges. Possessing the product was an honest mistake, said Ty Nelson, a manager. “We just want to follow the law,” he said. “We’re not looking to rock the boat.”

A couple mistakes – or poor decisions – shouldn’t lead to an overreaching ordinance, opponents said. Some made the case that it would violate constitutional liberties by restricting glass art, threaten the viability of businesses and ignore the true cause of the drug problem – demand. Others argue it would encourage a black market, be difficult to enforce and potentially cost taxpayers money if successfully challenged in court, which two owners have warned they would do.

“The law is so vague and poorly worded,” said Brady Bredell, owner of Mother’s Music, at his Fargo location, where vinyl records and CDs dominate the main area while culturally protected hookahs and traditional wooden tobacco pipes are available in a back room. He said the devices police would like to remove from his Moorhead store, where he has a whole wall of legal herbs such as licorice root, are legitimately used to smoke these products.

“We would not have a whole wall of them if people weren’t smoking them,” Bredell said, noting he likes the different approach Altenburg is championing.

This summer, with a website and Facebook group, Bredell formed FM Freedom Fighters to organize opposition to the ordinance. Chanting and carrying homemade signs, the group protested on the Main Avenue Bridge and helped pack the occasionally rowdy August meeting (Mayor Mark Voxland said he had never, in more than 20 years of city government, seen signs in the council chambers).

Bredell said the group might try to put the ordinance on next year’s general election ballot if the council approves it. To make that a reality, the group would need to submit just under 1,750 valid signatures to the city clerk within 30 days of passage.

Because only between 10 and 20 percent of his sales are from targeted products, Bredell said it wouldn’t be worth it for him take the tussle to court. But Wazwaz’s attorney Marc Kurzman and Discontent owner Tom Tepley said they like the zoning and licensing approach and will sue if the tabled ordinance becomes law.

“I’ll go in front of a jury and I’ll win,” said Tepley, who has owned a Moorhead smoke shop for nearly 35 years and is involved in a civil lawsuit against the state synthetic marijuana statute. “I’m not doing anything illegal because I sell so many smoking herbs it’s ridiculous.”

Moorhead police consulted Assistant Clay County Attorney Matthew Greenley to draft the ordinance, and he assured the department he will cooperate in prosecuting drug paraphernalia sales if it passes.

“I am 100 percent skeptical that (legal herbs) are what’s driving the sale of glass pipes…,” Greenley said. “Just about every pipe there is designed to smoke marijuana.”

Compelled by the mayor, Greenley and police officials met with business representatives this fall to discuss the measure.

Tepley said he had already voluntarily removed products such as novelty DARE shirts based on police appeals. Bredell said he’s done the same with one-hitters that resemble cigarettes. Mellow Mood’s Nelson said his two Moorhead locations stopped selling anything with marijuana leafs on it, including High Times magazines. And the stores that once sold a product often used to smoke methamphetamine, no longer do.

Yet the meeting, Bredell said, didn’t answer his or other businesses’ questions about what would and would not be legal under the proposal.

The chief “wasn’t being transparent at all,” Bredell said. “There was no attempt whatsoever to work with business owners.”

Ebinger said the stores just “didn’t like the information.”

The definition of drug paraphernalia, even under a more specific ordinance than state law, was ambiguous enough for Mark Taylor, public safety director in Northfield, Minn., to recommend at an Oct. 25 meeting against moving ahead with a proposal nearly identical to Moorhead’s.

“You and I might know that an item is being used with marijuana or some other drug, but it won’t stand in court,” Taylor told the council.

Altenburg shares that concern. “What we don’t need right now,” he said, “is a lawsuit we can’t afford.”

City and county attorneys said it’s unlikely courts would overturn the ordinance since a Dakota County court already affirmed a similar Hastings, Minn., law. Regardless, they said, Moorhead taxpayers would most likely not be liable to pay damages to stores.

St. Paul and Minneapolis have similar ordinances already on the books, but that hasn’t prevented many smoke shops - including one named Totally High Creations (THC) - from selling products Moorhead authorities contend are blatant drug paraphernalia. And despite having the same law as Fargo on the books, several other North Dakota cities, from Minot to Grand Forks, allow these shops.

Interpretation and enforcement of law differs in each community based on a variety of factors, said Kim Hegrik, a Cass County assistant state’s attorney who specializes in drug cases.

In 1999, Fargo police raided two head shops and seized pipes authorities considered to be contraband under state law. The stores – Mother’s Music and Vinyl Connection – declined to pursue potentially expensive challenges to the law and voluntarily agreed to stop selling the products to avoid prosecution. Accessories routinely found at Moorhead smoke shops might not be for sale in Fargo, but no North Dakota court has ruled on the constitutionality of Cass County’s drug paraphernalia enforcement.

Moorhead would strictly and consistently enforce the new law, said Greenley, the prosecutor. But “the passage of this ordinance itself isn’t the last word on this,” he said.

Said Ebinger: “We will proceed with caution.”

If the city does proceed, shops could relocate elsewhere in Clay County. Tepley said he has no plans to do that, though two realtors have approached him about property on the edges of Moorhead.

Clay County Commissioner Grant Weyland, an ordinance supporter and former Moorhead police chief, said the commission hasn’t talked about enacting a similar countywide law to preempt a proliferation of rural smoke shops.

“If it becomes an issue for the county, that is something we as a board would have to look at,” he said.

In the meantime, Moorhead council members Mark Hintermeyer, Dan Hunt, Nancy Otto and Brenda Elmer said they are likely to vote “yes” on the city ordinance Nov. 14.

Hunt, a retired Moorhead police lieutenant, said he’s heard unanimous support from his riverside constituents while campaigning for reelection this fall. “The community has decided they don’t want these products sold,” he said.

Some of Altenburg’s zoning and licensing ideas might be good, Elmer said, but it’s not enough – the city needs to align its policy with the rest of the metro.

“We are,” she said,” in many ways, one community.”

Otto said she supports the ordinance out of “love for people. I just don’t want to see anybody hurt by drugs.”

Altenburg, and council members Diane Wray Williams and Luther Stueland, said they are planning to vote “no.”

Wray Williams said the measure, first released just days before the July vote, blindsided her. Such a controversial proposition, she said, should have been vetted more thoroughly, with input from city committees and dialogue at a council work session.

“It makes me uneasy,” Wray Williams said. “Not only the process, but the wording.”

Redlinger, the city manager, said the city adhered to proper procedure and precedent. “It was a consistent process with other ordinances.”

After the August vote, Ebinger offered to meet with council members to further explain the proposal. Stueland, one of four members who didn’t sit down with the chief, criticized the invitation.

“The meetings were both a waste of time and an effort to skirt public scrutiny,” Stueland said.

But Redlinger and the chief said the “educational briefings” were legitimate because Ebinger didn’t try to ascertain or sway council votes.

To Stueland, an opponent of drug prohibition, the noble goal of preventing drug use is a matter of persuasion rather than “government-induced aggression,” and he worries the proposal would create a black market.

“I think it’s a violation of our citizens liberty,” Stueland said. “It attempts to solve a problem that doesn’t exist.”

Greg Lemke, Minnesota State University Moorhead public safety director and a former Fargo DARE officer, voted to table the ordinance in August, but didn’t return phone messages to explain his current position. His “yes” vote would likely seal the proposal’s approval, while his “no” vote could force the mayor to again break a tie.

Voxland said he’s reviewing all the options. “The silliest thing you can do as an elected official is close your mind before you’ve seen all the facts,” he said.

And there’s an abundance of facts and opinions on both sides of this debate – some more subtle than others.

At the August meeting, before his successful motion to table, Altenburg talked about Mellow Mood’s support for the West Fargo DARE program, the contributions of Mother’s Music to the local music scene and an annual party Tepley hosts for disabled people. The ordinance, he said, would do damage beyond the tangible tax receipts and the approximately 30 local jobs that could be affected.

“I’m looking at the costs of this as a community,” Altenburg said. “I don’t want to treat these folks as enemies.”

For Moorhead resident Teresa Norwig, 51, the issue is personal: She lost a niece last spring to drugs. “I don’t think we should encourage either tobacco use or drug use,” she said.

But for a Concordia College senior from Colorado, cannabis is his legal – he has a medical card issued by his home state – medicine for insomnia and depression. He said he’s never used another drug and never goes to work or school under the influence.

“People choose to use drugs. You’re not going to stop people from doing drugs,” said the student, who plans to become a doctor and asked not to be identified. “This is stupid and it completely befuddles me.”

With the breadth and strength of opinions in the community, City Hall might be packed again Nov. 14. Anybody can speak to the council for up to three minutes. And that could make for a late night.

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