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We’ve had it up to here

Moorhead pipe ban is dealyed yet again

By Bryce Haugen
Contributing Writer

Despite a momentary tease toward finality Monday night, the Moorhead City Council extended a three-month wait to decide the fate of a controversial drug paraphernalia ordinance two more weeks.

After more than two hours of evenly divided and sometimes emotional discussion, the council – minus member Greg Lemke – delayed the final decision on a proposal that would outlaw sales of what police call drug paraphernalia until their next meeting. If all members attend, the move would allow the full council to vote Nov. 28 on whether to ban much of the merchandise sold at five smoke shops along Main Avenue. A procedural sequence, confusing for many in the chamber, narrowly avoided a defeat for the proposal’s policy making, prosecutorial and police advocates, while it stunned disappointed opponents who vowed to fight on.

“It’s just more adventure in the city of Moorhead,” said Police Chief David Ebinger, softly chuckling as he left a bustling City Hall.

A few minutes earlier, the council voted 4-3 to kill the measure after an elaborate demonstration, lengthy questioning, and several public pleas of opposition and support. But that decision only lasted long enough for Council Member Mark Hintermeyer to take a breath. Exercising a parliamentary maneuver so he could secure a delay, Hintermeyer voted “no,” despite favoring the proposal. Then he immediately motioned to reconsider, and it passed 5-2.

Council Member Diane Wray Williams, who said she deliberated until the last moment, opposed the ordinance and supported the delay. After the meeting, she said she agreed with Hintermeyer: “The full council should vote on it.”

Lemke’s absence meant there was no fifth “yes,” a requirement for city ordinances regardless of how many of the eight members vote. Despite the simple majority, Hintermeyer’s intended affirmative and the resulting 4-3 tally would not have secured passage.

Reached late Monday, Lemke said he missed the meeting for a personal reason and plans to be there Nov. 28. The 10-year council veteran lost his recent reelection bid, and said he supports waiting for the three new members to take office at year’s end before moving forward.

“They’re the ones that are going to have to deal with the fallout,” said Lemke, Minnesota State University Moorhead public safety director and a former Fargo DARE officer.

In previous interviews, several council members and the mayor said they would like the dispute to end before the new council convenes. The prolonged debate started at a late July meeting, when the proposal easily passed. Opponents rapidly formed FM Freedom Fighters, a group that protested the ordinance and packed the subsequent August meeting. That’s when Mayor Mark Voxland, called upon to break a tie, voted to wait three months to allow a community-wide discussion.

“If push comes to shove, I would support the ordinance,” said Lemke, a deciding vote in the earlier delay, adding that his 26 years as a police officer convinced him that “most of the pipes sold are used to consume illegal drugs.”

In the City Hall lobby after the meeting, Discontent’s Tom Tepley, a 35-year owner of local smoke shops, said he believes passage is inevitable and he’s preparing to take the dispute from the council chambers to the courtroom.

“It’s quite obvious to me that the council has an agenda that they would like to put me out of business,” he said.

“I will beat this,” Tepley warned the council earlier. “I will start a suit immediately.”

Like other shop owners, Tepley insists his products have legal uses, and after the meeting, he reiterated how seriously he plans to respond: “I’m perfectly willing to fight this fight. It’s a matter of personal freedom … I’m not blowing sand up peoples’ butts when I’m saying this.”

Before Tepley – and several concerned parents, smoke shop employees and other residents – publicly exchanged conflicting perspectives, the police chief fielded council queries. Ebinger explained how he met with businesses in September but representatives would not admit to selling anything that would be considered paraphernalia. Then he dug into a plastic bin filled with examples of what police want to criminalize - all of them purchased at Moorhead smoke shops.

As an officer showed the council a bong with an attached gas mask, Ebinger said that is just one of many items obviously designed for drugs.

“I think [these objects] indicate a pattern that these items are used for ingesting controlled substances,” he said.

While many older crowd members nodded in agreement, a predominantly younger group avoided outbursts but seemed incredulous several times during the presentation. Some audibly scoffed when the chief and Assistant Clay County Attorney Matthew Greenley claimed the paraphernalia law would reduce violent crime.

“Tangentially,” said Greenley, who police consulted when drafting the ordinance and who would prosecute cases under the law, “a lot of illegal activities are tied to these items.”

When Council Member Mark Altenburg asked Ebinger whether identical laws in other communities had decreased drug use, the chief said he didn’t know, but “the collateral damage you see from drugs and addiction is massive and these items currently contribute to a culture that facilitates that.”

In an interview last month, Greenley conceded the law is “probably not going to make a dent in drug use,” but rather would “reflect the collective desire of the citizens to get this crap out of the city of Moorhead.”

In remarks to the council Monday, smoke shop manager Ty Nelson of Mellow Mood said the measure is hopelessly vague and enforcement would violate the Constitution’s equal protection clause. “This is a lazily put together ordinance …,” he said. “I won’t fight for a bunch of pipes, but I will fight for the Constitution of the U.S.”

Council Member Luther Stueland, an opponent of drug prohibition, joined that fight. He said government should focus on persuading people to avoid drugs rather than punishing users through “legislating morality.”

“We’re trying to expand the failed War on Drugs,” he said, and this law “is trying to address the symptoms rather than the illness.”

But earlier, Capt. Pat Claus of the Fargo Police Department said action is needed to stop a flow of paraphernalia from Moorhead into his city. Threatened with prosecution, two Fargo smoke shops voluntarily pulled similar inventory 12 years ago. Now is time, Claus said, for the border cities’ laws to align.

“This does have an impact,” he said. “It is a regional impact. Criminal activity does not know the bounds of the Red River.”

A near carbon copy of North Dakota statute and some other Minnesota city codes, the ordinance would make it a misdemeanor, punishable by up to 90 days in jail and a $1000 fine, to sell items an employee “knows or should reasonably know” will be illicitly used. It defines drug paraphernalia as items “used, intended for use, or designed for use” for illegal drugs, and carries a petty misdemeanor fine of $300 for simple possession.

The ordinance’s objective, Ebinger said, is not to increase prosecutions, but rather to promote voluntary compliance. “I see prosecution as a last resort,” he said.

Before the paraphernalia discussion, Altenburg shared information about how other Minnesota cities have dealt with regulating smoke shops. After first voting for the ordinance, he championed the three-month delay and is now exploring licensing and zoning reforms. Altenburg said his memo was “in no way comprehensive, but I hope will provide some direction moving forward.”

Pointing to several Twin Cities’ suburbs, he urged revamping Moorhead code to establish clear definitions of smoke shops and smoking accessories. Among several other possible changes, he suggested prohibiting new stores – existing ones would be unaffected – from opening in mixed residential and commercial areas, where Mellow Mood, Mother’s Music and Pyromaniacs are located.

Another idea aims to prevent shops from taking advantage of a loophole in the statewide smoking ban that allows for indoor tobacco “sampling” in smoke shops. Interviewed last month, the Pyromaniacs owner said he plans to open a hookah bar in Moorhead. The council could thwart that if, like St. Anthony Village and several other Minnesota communities, it passed a local prohibition.

After the meeting, Altenburg said he plans to, at an informal session next week, ask the council to approve moving ahead with a new zoning ordinance, but he indicated he would wait to push other changes until next year.

Multiple times at the Monday meeting, Altenburg stressed that he - and the whole council - strongly oppose drug use. “We’ve got to do everything in our power to keep kids off drugs,” he said.

But he also repeatedly explained his view that criminal laws should be made by the state, not local government. The measure might be congruent with North Dakota law, he said, but it also might prompt businesses to move to neighboring Dilworth or elsewhere where current state law would still apply.

A state law similar to the Moorhead ordinance has died in committee several times in the last few years, and Altenburg said it’s time for the legislature to produce a statewide solution so the law can be uniformly enforced.

“St. Paul does not want to take responsibility for this and that infuriates me,” he said, before directing his remarks toward legislators. “Don’t make us do your dirty work. Give us clear direction.”

Council Member Nancy Otto, a measure supporter, cited Moorhead’s smoke-free indoor law, among several ordinances passed before a 2007 statewide prohibition, as an example of local impetus leading to legislative action. She said the same model could work for the drug paraphernalia ordinance.

“That is what it takes some times,” she said.

Though he predicts passage Nov. 28, Altenburg said after the meeting that he doesn’t think the law will have a conclusive impact. Shops will continue to sell products they can claim are legal, he said, and the potentially expensive wrangling in the courts could drag out for years.

“I think,” he said, “it’s a feel good measure for those who want to continue fighting the War on Drugs.”

Leaving the nearly four-hour meeting Monday, some observers – the ones who didn’t quickly dash to catch the second half of the Vikings-Packers game – stood outside the chamber attempting to make sense of the preceding political drama.

“I think it’s a joke,” said Michael Marion, 19, a Moorhead resident and ordinance foe.

Others were happy for the delay, including addiction counselor Nathan Richman. In an emotional speech, he urged the council to eschew economic arguments in favor of asking, “How do we quantify the amount of pain that has been caused in our community by things like [pieces of drug paraphernalia]?”

“I’m pleased that the opportunity remains to do the right thing,” he said as he left City Hall.

But even council approval Nov. 28 might not conclude the political phase of the paraphernalia saga. On its website, FM Freedom Fighters is collecting contact information from ordinance opponents who are willing to sign a petition. If organizers were to submit about 1750 registered voters’ signatures within 30 days of passage, it would immediately delay enactment and voters would decide the final outcome in the 2012 general election.

FM Freedom Fighters founder Brady Bredell, owner of Mother’s Music, said Tuesday that he doesn’t have the resources to lead a petition drive, but would assist Mellow Mood and Discontent in collecting signatures if owners moved to put it on the ballot.

On Tuesday, Discontent’s Tepley didn’t rule out the possibility of a petition, but he stopped far short of committing to such an effort.

“It just may be an exercise in futility,” he said. “It’s a stalling tactic. That’s all it is.”

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