|
Page 2 of 6
<br />James Monge
<br />were not included in the ordinance. (Id.)
<br />2. The Language of the Ordinance
<br />On November 28, 2011, the Moorhead City Council
<br />adopted the Drug Paraphernalia Ordinance, Ordinance
<br />No. 2011-11 ("Ordinance"). (Ebinger Aff. ¶ 4; Compl.,
<br />Ex. A.) The Ordinance became effective on January 11,
<br />2012. (Penas Aff. ¶ 2.)
<br />The [*3] Ordinance states:
<br />A person may not deliver, possess with intent to
<br />deliver, or manufacture with intent to deliver, drug
<br />paraphernalia, if that person knows or should
<br />reasonably know that the drug paraphernalia will be
<br />used to plant, propagate, cultivate, grow, harvest,
<br />manufacture, compound, enhance, convert,
<br />produce, process, prepare, test, analyze, pack,
<br />repack, store, contain, conceal, inject, ingest,
<br />inhale, or otherwise introduce into the human body
<br />a controlled substance in violation of Minnesota
<br />Statutes Chapter 152. Any violation of this section
<br />is a misdemeanor.
<br />Ordinance § 1.B. The Ordinance defines "drug
<br />paraphernalia" as
<br />all equipment, products, and materials of any kind,
<br />which are used, intended for use, or designed for
<br />use in planting, propagating, cultivating, growing,
<br />harvesting, manufacturing, compounding,
<br />enhancing, converting, producing, processing,
<br />preparing, testing, analyzing, packaging,
<br />repackaging, storing, containing, concealing,
<br />injecting, ingesting, inhaling, or otherwise
<br />introducing into the human body a controlled
<br />substance in violation of Minnesota Statutes
<br />Chapter 152.
<br />Ordinance § 1.C(1). The Ordinance excludes
<br />hypodermic needles and syringes from this definition
<br /> [*4] and then presents a non-exhaustive list of items
<br />deemed to be drug paraphernalia:
<br />Objects used, intended for use, or designed for use
<br />in ingesting, inhaling, or otherwise introducing
<br />controlled substances to include but not limited to
<br />marijuana, cocaine, hashish, or hashish oil into the
<br />human body, including:
<br />a. Metal, wooden, acrylic, glass, stone, plastic, or
<br />ceramic pipes with or without screens, permanent
<br />screens, hashish heads, or punctured metal bowls.
<br />b. Water pipes.
<br />c. Carburetion tubes and devices.
<br />d. Smoking and carburetion masks.
<br />e. Objects, sometimes commonly referred to as
<br />roach clips, used to hold burning material, for
<br />example, a marijuana cigarette, that has become
<br />too small or too short to be held in the hand.
<br />f. Miniature cocaine spoons and cocaine vials.
<br />g. Chamber pipes.
<br />h. Carburetor pipes.
<br />i. Electric pipes.
<br />j. Air driven pipes.
<br />k. Chillums.
<br />l. Bongs.
<br />m. Ice pipes or chillers.
<br />Ordinance § 1.C(c)(11). The Ordinance further sets out
<br />"Drug Paraphernalia Guidelines"—factors for
<br />determining whether an item is drug paraphernalia,
<br />including:
<br />(a) Statements by an owner or by anyone in control
<br />of the object concerning its use.
<br />(b) Prior convictions, if any, of an owner, or of
<br />anyone in [*5] control of the object, under any state
<br />or federal law relating to any controlled substance.
<br />(c) The proximity of the object, in time and space, to
<br />a direct violation of this ordinance.
<br />(d) The proximity of the object to controlled
<br />substances.
<br />(e) The existence of any residue of controlled
<br />substances on the object.
<br />(f) Direct or circumstantial evidence of the intent of
<br />an owner, or of any person in control of the object,
<br />to deliver the object to another person whom the
<br />owner or person in control of the object knows, or
<br />should reasonably know, intends to use the object
<br />to facilitate a violation of this ordinance. The
<br />innocence of an owner, or of any person in control
<br />of the object, as to a direct violation of this
<br />ordinance may not prevent a finding that the object
<br />is intended or designed for use as drug
<br />paraphernalia.
<br />(g) Instructions, oral or written, provided with the
<br />object concerning the object's use.
<br />(h) Descriptive materials accompanying the object,
<br />which explain or depict the object's use.
<br />(i) National and local advertising concerning the
<br />object's use.
<br />(j) The manner in which the object is displayed for
<br />sale.
<br />(k) Whether the owner, or anyone in control of the
<br />object, is a legitimate supplier [*6] of like or related
<br />items to the community, for example, a licensed
<br />distributor or dealer of tobacco products.
<br />(l) Direct or circumstantial evidence of the ratio of
<br />2013 U.S. Dist. LEXIS 4392, *2
|