Stillwater City Council Approves a Ban on Drug Paraphernalia Sales

An is on the horizon. And a long court battle is likely to follow.

The Stillwater City Council unanimously approved the first reading of an ordinance Tuesday night that would ban the sale of pipes, bongs and “kits used for producing, processing and preparing controlled substances.”

The ordinance will have a second reading May 8.

“This whole endeavor has drawn a lot of attention from people in the business and the law enforcement community,” Stillwater City Attorney Dave Magnuson said. “Several cities have used their imagination and their tenacity to try to impact the sale of drug paraphernalia.”

The draft of Stillwater's proposed ordinance is similar to one adopted in Moorhead, Magnuson said. That ordinance was challenged in federal court and was found to be constitutional.

“One of the reasons it was (found to be constitutional) was the effort to define paraphernalia and be more specific than the statute,” he said.

But Randall Tigue, an attorney for the city’s only smoke shop——told the Pioneer Press it will be tough for officials to convince a jury that a glass pipe is drug paraphernalia.

"We're not attacking the constitutionality of the ordinance," Tigue told the Pioneer Press. "We're attacking the city's intended enforcement practice. Every city that passes this ordinance assumes they can ban every glass pipe in the store, and that's simply not what the ordinance says. What the cities have done is gone in and said, 'If you sell any of these pipes, we're going to bust you for it, regardless of whether you have intent.' That, I don't think, is supported by the plain language of the ordinance."

Stillwater’s proposed ordinance not only defines paraphernalia to be more specific than the statute, but it also addresses enforcement, Magnuson said.

“The ordinance establishes guidelines for the officers, so if they are going to consider seizing some of this property, or writing a ticket, there are things other than the actual paraphernalia that guide their decision about how those physical things are used,” Magnuson said. “We think an ordinance that has been tested in the federal court is a good place to start.”

Tigue told the Pioneer Press he would try every case before a jury and appeal it to the U.S. Supreme Court if necessary.

“I can’t help but make the observation that 40 years ago on the ships we were trying to track down sailors for the exact same thing,” Council Member Doug Menikheim quipped. “We haven’t made much progress, have we.”

“No,” Magnuson replied. “We really haven’t. As they say, the hunger for this stuff is the mother of invention.”