Hudson shop owner says pipes were for tobacco
The owners of a Hudson shop hope a St. Croix County jury will see things differently than a municipal judge and reverse convictions on 52 citations for selling drug paraphernalia.
On Jan. 7, 2013, Hudson police confiscated 52 pipes on display at Hideaway 4, 2117 Coulee Road, and issued one ticket for each pipe.
Hudson Municipal Court Judge Susan Gherty heard testimony four days last October. After accepting additional written arguments, she issued a decision in December, finding the Hideaway owners guilty on all 52 counts and fined the business $12,480 -- $240 per citation.
In 1993 the Hudson City Council adopted an ordinance prohibiting the sale of equipment and materials intended or designed to inject, ingest, inhale or otherwise introduce controlled substances into the human body.
According to background in the court file, Wael Sakallah began operating his businesses in 2001, and in March 2012 Hideaway begin promoting the opening of its Hudson store on its Facebook and Twitter pages.
The Hudson Police Department explained its enforcement practice in a certified letter received by Sakallah on July 26, 2012, and on Jan. 7, 2013 performed a “compliance check” and seized the pipes.
Prosecution witnesses at the Hudson Municipal Court trial included Hudson police investigator Geoff Willems, the department’s lead drug investigator; Special Agent Jeffrey Kostner with the Wisconsin Department of Justice; Adam Christopherson, a Hudson High School graduate and marijuana user; and William Sames, an employee of St. Croix Cigar Company. The four testified that the pipes were for use with controlled substances and not tobacco.
An herbalist testified that she recommends inhaling herbal smoke for about 10 percent of her clients, and an employee of Sakallah testified that the pipes were “low end junk designed for tobacco and ‘new herbs.’”
City prosecutor Max Neuhaus said Hideaway workers knew the pipes would be used with controlled substances because they posted a sign at the store entrance advising customers not to discuss illegal activities. He said they also didn’t provide adequate instruction for using the pipes, and the only descriptive materials were “small pea-sized labels stating ‘tobacco use only’ that were poorly affixed to an incomplete number of them.”
Neuhaus also insisted the defendant’s position that the subject pipes were intended for tobacco is compromised by the fact that a good number of the pipes had bags of damiana -- an herb that has been used to cure headaches and as an aphrodisiac -- attached to them.
Hideaway’s attorney, Aaron Nelson, argued that all 52 charges should be dismissed.
“The 52 clean unused pipes were not sold. The 52 clean unused pipes were never used to inhale or smoke marijuana,” wrote Nelson. “The 52 pipes were designed for use with tobacco. The 52 pipes were not for sale with the intent that the buyers use the pipe to smoke marijuana.
“The city has not met their high burden to prove by clear, convincing and satisfactory evidence that the pipes were intended for use with marijuana.”
Nelson noted that Hideaway is a licensed tobacco distributor and dealer and sells tobacco, herbs and other tobacco smoking accessories and paraphernalia, including many types of pipes.
“The issue in this case boils down to whether the 52 pipes were ‘intended for use’ to smoke marijuana,” wrote Nelson. “The city relies on both poor logic and an inaccurate reading of (case law) to conclude that they must only show Hideaway 4 ‘should’ have known the pipes ‘might’ be used for ‘some’ illegal purpose.”
He said the city wanted to lower its burden of proof to an “absurdly low level.”
Using the city’s argument, he said, a case could be made that “lots of items including razors, pens, mirrors, apples, rolled up dollar bills, wooden pipes, soda cans, etc.” would be drug paraphernalia.
In her decision, Gherty said Sakallah and three of his employees who testified had a vested interest in the outcome of the case, “which calls into question their credibility.”
As for the sign warning against discussion of illegal activities, Gherty said, “A reasonable person posting such a notice, knew, or reasonable (sic) should have known, that use with controlled substances is likely.”
She took issue with Sakallah’s claim that taping a small package of herbs to the pipes was intended to encourage people to buy herbs.
“It is curious how the signage on the product indicates for ‘tobacco use only’ but yet clearly suggests use of some other material with the product,” wrote Gherty.
She also referred to testimony that Sakallah has four Hideaway stores. A Facebook pace indicated Hideaway was voted “best head shop” by City Pages in April 2011, and Willems’ investigation revealed that Hideaway.com website advertised four locations as “your one stop head shop.”
The county case has been assigned to Judge Scott Needham. A pretrial is set for May 22, and a jury trial for June 16.