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City and shop battle in court over definition of drug paraphernalia

A sign in front of the Left of Center sex shop expresses the owner's displeasure with the city of Hudson for enforcing an ordinance prohibiting the sale of drug paraphernalia. The sign was removed after the Star-Observer published this story on the case.

A dispute between the city of Hudson and a downtown sex shop is headed for a showdown in St. Croix County Circuit Court.

On Monday, Judge Eric J. Lundell heard a motion to consolidate the cases of two shop employees fined $6,000 each for possession of drug paraphernalia and set a jury trial to hear an appeal of their convictions.

The case boils down to whether pipes commonly used for smoking marijuana and other drugs are drug paraphernalia if they haven't been used to consume illegal drugs.

Melissa J. Daniels of Coon Rapids, Minn., and Brian E. Orcutt of Maple Grove, Minn., were each charged with 25 counts of possession of drug paraphernalia after police conducted a search of the Left of Center shop, 505 Third St., in February 2012.

Municipal Judge Susan S. Gherty found the pair guilty of the charges on May 21, 2012, following seven days of testimony, and fined them $240 for each count.

In her ruling, Gherty said the Hudson ordinance prohibiting the possession of drug paraphernalia is "explicit and precise in its language," and that the evidence produced over the seven days of the trial was clear and convincing that the pipes seized in the search met the definition of drug paraphernalia.

Daniels, the daughter of Left of Center owner Chester Thomas, and Orcutt filed an appeal of the conviction in St. Croix County Circuit Court. They claim the prosecution was selective or discriminatory.

Previously, drug paraphernalia was defined as items located with drugs or used to ingest a controlled substance, according to Daniels' and Orcutt's attorney, Andrew Nelson of Hudson.

A sandwich board sign criticizing Mayor Alan Burchill for the amount of money spend prosecuting Daniels and Orcutt stands on the sidewalk in front of the Left of Center shop.

"Hudson citizens!!! No money 4 schools. No money 4 the library. $23,532 spent on one court case. Several more scheduled. Mayor Burchill not concerned. Let him know you are," the sign reads.

When contacted earlier this week, the mayor said: "The police department enforces the ordinances that we have, and I support the police department enforcing the laws. We don't tell them which ones to enforce or not to enforce."

Police Chief Marty Jensen said he decided to cite the Left of Center managers after a federal court ruled that a Moorhead, Minn., ordinance prohibiting the possession or sale of the types of pipes seized at the Hudson shop was constitutional.

Jensen said Moorhead's drug paraphernalia ordinance is very similar to Hudson's.

"I wouldn't have our officers start enforcing this if I didn't think we were on good solid footing," he said in a phone call Monday.

He said all of the shops in Hudson selling those types of items were warned that the police department planned to adopt a different interpretation of what consisted of drug paraphernalia, and were given a deadline to have the items removed. The deadline came and went without the items being removed from Left of Center, he indicated.

Jensen noted that, at the time, the police department was coming across cases of people high on synthetic marijuana that was being sold in shops.

He said he decided that if he could do something to cut down on the sale of drug paraphernalia it might help in a small way to reduce the consumption of harmful drugs.

Jensen said Hudson shops are no longer selling synthetic marijuana.

The police chief said he doesn't buy the argument that the "one-hitter" pipes are used for tobacco.

"I have never seen that use in my 26 years of law enforcement," he said.

Daniels said she was too busy to talk when contacted by telephone on Monday. She invited the Star-Observer to call again on Tuesday, but that call wasn't made.