MINNEAPOLIS (AP) — A northwestern Minnesota shop that sells tobacco, pipes and other products has sued the city of Moorhead over the way police are enforcing a new ordinance outlawing drug paraphernalia.
In a lawsuit filed this week in federal court, attorneys for Discontent are asking for a temporary restraining order that would keep police from enforcing the ordinance, which makes it illegal to sell items that are intended for use with controlled substances.
In the lawsuit, Discontent and its owner, Disc & Tape, say the pipes and other devices it sells are intended to be used to smoke tobacco and other legal herbs. The lawsuit says some of the items “may incidentally resemble devices used to smoke controlled substances” but do not constitute drug paraphernalia under the ordinance.
According to the lawsuit, police told employees that regardless of the intent, the devices in the store were illegal. Discontent closed on Jan. 10, the day the ordinance went into effect, out of fear that employees would be arrested.
In addition to the restraining order, the store is seeking an order declaring that enforcement of the ordinance is unconstitutional. The store is also seeking damages from lost income since it has been closed. That amount would be determined at trial.
City attorney Brian Neugebauer said Moorhead plans to fight the complaint.
“The city is confident the ordinance is constitutional and prohibits the sale of illegal items,” Neugebauer said. “They’ve always disagreed. To them, there is no such thing as drug paraphernalia.”
Neugebauer said the ordinance is patterned after North Dakota’s statewide ban on drug paraphernalia.
Randall Tigue, an attorney for Discontent, said Moorhead’s ordinance isn’t that different from Minnesota’s statute, but under state law, in order to prove an item is drug paraphernalia there has to be intent to use it with illegal substances.
He said in Moorhead, when police say pipes with certain physical characteristics are illegal regardless of their intent, “that essentially puts my clients out of business.”
The lawsuit also states that the plaintiffs have collected more than enough signatures to force a referendum. Under the city charter, the ordinance would stay in effect until repealed by referendum, which wouldn’t come up for a vote until November 2013.
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