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​Simmering feud

by Bryce Haugen | .(JavaScript must be enabled to view this email address) | News | December 13th, 2012

This time last year, Moorhead’s Main Avenue corridor was a regional mecca for those seeking glass pipes, one-hitters, bongs, grinders and other smoking fare. Now two prominent storefronts at the doorstep of the city sit empty, a visible sign of the drug paraphernalia ban the city council passed just over one year ago.

Only one of five stores has weathered the pipe ban with relative ease. Mother’s Music found a niche selling traditional tobacco pipes, which were exempt from the ordinance. Discontent is gone – at least for now – as the owner continues to wrangle with Moorhead in federal court. In its place is a custom screen printing business. The back part of the same building houses Pyromaniacs, which has an indoor hookah smoking lounge. Its old location – and its vibrant neon lighting – has vanished along with the Mellow Mood shop across the street. The day after the latter’s closure, a former employee opened up Hookah Hideout at 1825 Main Ave. in the original, smaller Mellow Mood location.

One year after the ordinance passed a split city council following a four-month fight, views among community leaders and business owners are mixed. Most lament the empty retail spaces in the downtown core. Many are pleased that Moorhead is no longer a destination for smoking accessories police and prosecutors deem are used exclusively as drug paraphernalia, while others harbor resentments about what they claim were the political motivations behind the ordinance.

“Unfortunately, the City put the politics of prohibition above the economic interests of the community,” Blair Nelson, Mellow Mood’s attorney, said in an email.

Nelson wrote that the negotiated settlement between Mellow Mood’s owner, who was charged with selling illegal synthetic marijuana – the charges were continued for dismissal – was reached for economic reasons because, after the ban, the store was barely breaking even. The agreement stated the owner could not operate Mellow Mood or a similar interest in the city for a period of time.

“While Mellow Mood operated locally for over a decade as a steady member of the local business community, at this time Mellow Mood has no intention of reopening in Moorhead,” Nelson said. “Should the legal and political environment become more business friendly in the future, anything is possible.”

Discontent owner Tom Tepley said he’s open to reopening Discontent in Moorhead if he wins his lawsuit in federal court. Tepley’s trying to prove that the items his store sold have dual use and that preemptive police enforcement tactics were unconstitutional.

“We’re not challenging the ordinance, we’re challenging the way police are interpreting enforcement,” he said.

The lawsuit includes portions of a transcript of an audio recording made at Discontent on Dec. 21, 2011 – before the ordinance was implemented. On it, “officers stated that ‘nobody is going to jail over this.’ Instead,” according to the lawsuit, “the officers stated that, once the Ordinance went into effect, they would visit the shop and determine if drug paraphernalia was still being sold. If the shop was not in compliance with the Ordinance, the officers ‘would issue citations and … have a court date issued then.’”

The ban makes it a misdemeanor with up to a $1,000 fine and 90 days in jail to sell products “if a person knows or should reasonably know” they will be used illegally. Store employees could be held personally accountable in court.

On November 21, the city made a motion for summary judgement in an attempt to have the lawsuit thrown out. Generally, federal judges rule on such motions within 90 days.

Jim Thomson, an attorney representing Moorhead through the League of Minnesota Cities, defended the ordinance as valid.

“Our position is: It’s clear that the intended enforcement practice is consistent with what the ordinance says," Thomson said. “Therefore we win.”

Tepley’s optimistic his side will prevail. “It’s far from done,” he said. “I feel this is an unjust ordinance and I’m going to fight this till the end.”

In the meantime, Tepley operates Just For You Shirts in the front half of the old Discontent space. The building’s back half has Moorhead’s latest incarnation of Pyromaniacs, which is nearly exclusively devoted to hookah sales and has an indoor lounge for shisha sampling.

Pyromaniacs representatives declined to comment for this story while placing some blame on the media for getting their Fourth Street location shuttered.

A voice message left for the old location’s property developer was not returned.

But Arnie Kuhn, a real estate agent who helps sell the condos above the old Pyromaniacs location, did say that level of interest in the units has markedly increased since the removal of the “clandestine” business.

Despite several empty storefronts, Moorhead Mayor Mark Voxland said passage of the ordinance was good for that part of town.

“I think the loss of the smoke shops is probably going to help the area a little more and we’ll just keep moving forward,” Voxland said.

From a law enforcement perspective, the optimal objective of the ordinance – voluntary compliance – was achieved, Moorhead police Chief Dave Ebinger said.

“It’s serving the purpose it was intended for,” he said. “Everyone complied from the beginning so we have not been put in a situation where there has been a violation.”

On the Fargo side, there has been no obvious change since the ordinance’s adoption, Fargo police spokesman Joel Vettel said. In the run-up to the vote, some Moorhead officials used the proliferation of drug paraphernalia in Fargo as part of their justification for a “yes” vote in order to create a “community standard.” Fargo has enforced a stricter North Dakota drug paraphernalia law than Minnesota’s for more than a decade.

But Moorhead city council member and ordinance opponent Luther Stueland, who represents downtown Moorhead, said the measure, like all prohibitions, just drove the problem “underground.”

“The problem is putting politicians in charge of economic decisions,” he said. “We’re our own worst enemy. When government’s involved in economic decisions you end up with a worse situation than you started with.”

Fellow council member Nancy Otto, a “yes” vote, sees the prohibition differently.

“There’s been some good changes (downtown),” said Otto, who also represents the area.

For Brady Bredell, owner of Mother’s Music, his Main Avenue business of selling traditional tobacco pipes, posters and albums “is doing just fine” one year after the ban.

“I kinda lucked out,” he said. “I probably would have been more affected if Mellow Mood and Pyro had not closed down.”

But Bredell, founder of anti-ordinance group F-M Freedom Fighters, is still irked by what he views as government intrusion in his private operation.

“I think the whole situation was all politically motivated,” he said. “I don’t think the decisions were made for the benefit of the people. It was done for political gain.”

Moorhead, he added, is not the most welcoming environment for small business.

That is a viewpoint city leaders have battled for years as they compete with the red-hot Fargo economy and its booming downtown.

Voxland, Moorhead’s mayor, said the city focuses on growth in the primary sector, companies that add wealth to the city rather than hand it back and forth within the city.

“If you get (primary sector),” he said, “retail kind of follows.”

“Downtown Moorhead needs a lot of help yet, but we are starting to see things looking up,” Voxland said.

City manager Mike Redlinger said the city is also focusing on marketing residential properties and high-quality schools to attract residents. The Main Avenue corridor, however, is far from neglected. A Minnesota Department of Transportation project slated for 2013, Redlinger said, will enhance drivability and walkability for the thoroughfare.

“Long-term prospects are good,” he said.

But the memory of the drug paraphernalia ban fight leaves lingering animosity for several businesses and employees that contributes to skepticism about the city’s motives.

“The real motivation was not to eliminate pipes, it was to eliminate specific businesses and it was successful,” Max Stack, a Hookah Hideout (and former Mellow Mood) employee, said. “I can see why they didn’t want the city of Moorhead to be solely smoke shops but I think the way they handled it was a little extreme.”

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