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<br />James Monge
<br />sales of the object or objects to the total sales of
<br />the business enterprise.
<br />(m) The existence and scope of legitimate uses for
<br />the object in the community.
<br />(n) Expert testimony concerning the object's use.
<br />(o) The actual or constructive possession by the
<br />owner or by a person in control of the object or the
<br />presence in a vehicle or structure where the object
<br />is located of written instructions, directions, or
<br />recipes to be used, or intended or designed to be
<br />used, in manufacturing, producing, processing,
<br />preparing, testing, or analyzing a controlled
<br />substance.
<br />Ordinance § 1.D.
<br />3. Police Visit to Discontent
<br />Representatives of the Moorhead Police Department
<br />met with all affected businesses regarding the
<br />Ordinance on December 20 and 21, 2011. (Ebinger Aff.
<br />¶ 4; Penas Aff. ¶ 5.)
<br />On December 21, 2011, Moorhead Police Lieutenant
<br />Brad Penas, Detective Bradley Stuvland, and Detective
<br />Larson visited Discontent. (Penas Aff. ¶ 6; Stuvland Aff.
<br />¶ 3.) Thomas Tepley, principal of Disc & Tape, which
<br />owns Discontent; an attorney; and another Discontent
<br /> [*7] employee were present during the meeting. (Penas
<br />Aff. ¶ 6; Supp. Tepley Aff. ¶ 1.) Tepley had the
<br />meeting's conversation recorded and then had the
<br />recording transcribed. (Penas Aff. ¶ 6; Supp. Tepley Aff.
<br />¶¶ 3-5; Supp. Tepley Aff., Ex. A, Dec. 20, 2011
<br />Transcript ("Transcript").) Penas also took written notes
<br />of the meeting. (Def. Ex. 2, Penas Notes; Penas Aff. ¶
<br />5.)
<br />During the visit, police officers identified the items in
<br />Discontent that the officers considered to be drug
<br />paraphernalia and therefore prohibited by the
<br />Ordinance. Such items included "water bongs," "short
<br />metal and glass pipes," "vaporizers," and dugouts.
<br />(Transcript 5-7.) The officers also identified items, such
<br />as "traditional hookahs," "traditional pipes," "scales,"
<br />and "grinders," which would not be considered drug
<br />paraphernalia under the Ordinance. (Id. 4-7.) The
<br />prohibited items constituted a substantial part of
<br />Discontent's inventory, perhaps up to 80%. (Penas Aff.
<br />¶ 9.)
<br />According to the transcript, the officers stated that
<br />"nobody is going to jail over this." (Transcript 1; see also
<br />Penas Notes ("We were clear that arrests would not be
<br />made and subjects in violation would be tab charged
<br />with a court date.").) [*8] Instead, the officers stated
<br />that, once the Ordinance went into effect, they would
<br />visit the shop and determine if drug paraphernalia was
<br />being sold. (Transcript 2.) If the shop was not in
<br />compliance with the Ordinance, the officers "would issue
<br />citations and . . . have a court date issued then." (Id.)
<br />4. Follow-Up Letter
<br />On December 30, 2011, the City sent Tepley a follow-up
<br />letter, which stated:
<br />As discussed in our meeting, there were several
<br />items on display in your business that will constitute
<br />a violation of the new ordinance. We would like
<br />businesses to come into voluntary compliance
<br />when the ordinance takes effect on January 11,
<br />2012. Failure to remove the items we discussed
<br />could result in citations and prosecution.
<br />(Def. Ex. 3.)
<br />Tepley closed Discontent on January 11, 2012. ([Docket
<br />No. 5] First Tepley Aff. ¶ 17.) He avers that he will not
<br />reopen it unless he receives injunctive relief from this
<br />Court. (Id. ¶ 18.)
<br />5. Other Moorhead Businesses
<br />Four other Moorhead businesses were affected by the
<br />Ordinance: Mother's Records, two Mellow Mood stores,
<br />and Pyromaniacs. (Penas Aff. ¶ 10.) Mother's Records
<br />remains in business with a modified inventory which
<br />complies with the Ordinance. (Id.) [*9] Penas asserts
<br />that one of the two Mellow Mood stores is still open,
<br />also with a modified inventory that complies with the
<br />Ordinance. (Id.) The owners of Mellow Mood voluntarily
<br />worked with the police department to modify Mellow
<br />Mood's inventory. (Id.) Tepley avers that, in fact, both
<br />Mellow Mood stores have now gone out of business.
<br />(Tepley Aff. ¶ 8.) Penas avers that Pyromaniacs
<br />modified its inventory to be in compliance with the
<br />Ordinance, but has temporarily closed its business to
<br />remodel to add a hookah lounge. (Penas Aff. ¶ 10.) It
<br />has now reopened in Discontent's previous location.
<br />(Tepley Aff. ¶ 9.)
<br />6. Current Enforcement of the Ordinance
<br />The Moorhead Police Department's official policy is to
<br />enforce the Ordinance as it is written. (Ebinger Aff. ¶ 5.)
<br />The policy does not include arrest or confiscation of any
<br />products. (Id.) The City has not yet taken any
<br />2013 U.S. Dist. LEXIS 4392, *6
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