On Monday morning, officers entered , an adult entertainment and tobacco shop in downtown Hudson, took 25 products off the shelves, confiscated them as "drug paraphernalia" and wrote 25 tickets apiece for managers Melissa Daniels and Brian Orcutt.
The same products had been deemed legal by the city for more than a decade. The head shop is owned by East-of-the-River Enterprises LLC, a Minnesota company controlled by Chester Thomas of Wright, MN, according to the state's business records. Though Thomas couldn't be reached for comment, his attorney, of Hudson, calls it a case of "selective enforcement" that won't stand up in court.
Hudson Police Chief Marty Jensen decided to change the way the city's drug paraphernalia ordinance was enforced, so on April 25, he had an officer drop off a letter at Left of Center that informed the managers of violations with a May 1 deadline for compliance.
The managers worked with police over the following weeks to determine exactly what would be considered drug paraphernalia under the new enforcement of the city's ordinance. Left of Center received another letter on May 11, this time from Hudson Police Detective Geoffrey Willems, which laid out exactly which items must be removed from the shop by a new deadline — 8 a.m. on May 21.
Just before noon on May 21, Willems arrived at the shop to find nearly all the infringing materials removed from the shop except for one of each item neatly placed in a display case at the front of the store. Hudson Police officers issued 25 citations apiece — each for $240 — to Daniels and Orcutt. Though the rest of the store was cleared of its pipe inventory, the managers left the 25 items for the police to take in order to receive the citations and get the matter into the legal system.
The judicial process begins on June 20 when Daniels and Orcutt must appear in front of Judge Sue Gherty in Hudson Municipal Court and face all 50 individual drug paraphernalia charges.
The Store Managers
The evening before the police deadline, Daniels spent hours packing away what was left of the store's high-end pipes. She maintains that the shop has always played by the rules set forth in the law and points to several signs around the store that tell customers the pipes are for smoking tobacco only. Even further, Daniels said that employees remove customers who make an illegal intent known while in the store.
Orcutt said that he had been keeping a tally of customers who come in asking about pipes and accessories, and he said he missed out on business from at least 10 customers in less than five hours after the police left.
As of Monday morning, the managers had more than 420 signatures on a petition that says "I support Left of Center as a business, for their right to sell Tobacco Pipes and Tobacco Accessories for the intended use of legal Tobacco and Herbal Smokes. I myself as a consumer, also feel I have the right to purchase and use these products for their intended legal purpose. I am 18yrs or older."
With 25 $240 drug paraphernalia charges pending against them in Hudson Municipal Court, both Daniels and Orcutt are committed to seeing the judicial process through.
"We're going to take it all the way to the end," Orcutt said. "Our attorney said no matter if he had to go to the Wisconsin Supreme Court, he's not going to stop."
The Police Chief
In late February, the Hudson Police Department for a few hours. By March, Jensen was looking into ways to expand enforcement of the City of Hudson's controlled substances and drug paraphernalia ordinance.
"Back at the end of March, I had seen an article in regards to Moorhead, MN, winning a court case in federal court in regards to their drug paraphernalia ordinance," Jensen said.
Moorhead enacted its ordinance in October. One of the stores there was forced to close the day the ordinance went into effect and the owners sued the city. Moorhead won the case in federal court.
"So, I asked the city attorney to take a look at their ordinance to see if it was something we could do," Jensen said. "We were always under the assumption that the pipe hadn't been used, it wasn't considered drug paraphernalia."
When the city attorney compared the Moorhead ordinance with Hudson's the two were almost identical, Jensen said. After reviewing some other drug paraphernalia case law with the city attorney, Jensen decided to change the way the department enforces the ordinance. Shortly afterward, Jensen sent the initial letter to Left of Center.
Jensen mentioned that two other shops planning to open in Hudson: — and The Hideaway. He believes that the enforcement changes will help curb some of the city's illegal drug use, especially among youth.
"Obviously we have a drug problem here in town," Jensen said. "With our limited resources, we can only do so much. If we can slow down people's ability to get drug paraphernalia, hopefully we're slowing down some of the drug use that's going on."
Jensen likens this action to when stores were forced to keep ephedrine behind the counter instead of out on the shelf. He says that limited the means for making methamphetamine, which dramatically reduced the number of meth labs in the area.
City Prosecutor Max Neuhaus said it was Jensen's decision to change the way it enforces the city's drug paraphernalia ordinance.
"My role is to prosecute the citations once they're issued," Neuhaus said. "In terms of the policy or the reasons on the outset that's a Hudson PD question."
Neuhaus said that as it is slated now it is a trial of fact. Daniels and Orcutt are scheduled to appear in City of Hudson Municipal Court on June 20. After their pleas are entered, they along with Nelson will set up a pretrial conference with Neuhaus before going to trial in front of Municipal Judge Sue Gherty. Once Gherty makes her ruling, either party can appeal the decision in St. Croix County Circuit Court.
Nelson, on behalf of the store managers, could file a petition with the circuit court to challenge outright the constitutionality of the ordinance.
"We have a couple of options," Nelson said. "We can file a claim for vagueness and over breadth of the statute in federal court. We can make a claim for an injunction and get a declaratory judgment in civil court. Or we can start off by litigating this particular ticket, and I think we're going to take that route first because we don't feel that they can prove the elements under the ordinance in court."
Nelson said that the city won't be able to prove the items are drug paraphernalia because the city's interpretation of the ordinance isn't a standard that the court will uphold. He says that just about anybody can buy a corncob pipe in a drug store use it for a legal purpose and that this action is "selective enforcement" by the police department.
"I don't think the court is going to say, 'The Hudson PD says that this is drug paraphernalia, so it is, and you're guilty,'" Nelson said. "Everybody knows that these items are not drug paraphernalia until someone adds the drug element to it. Everybody knows that. What they're trying to do is issue citations on the chance that somebody could use these for an illicit purpose. We have different laws in this country for that purpose."