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Drug paraphernalia countywide ordinance draft heard

Hubbard County Board moves proposal to committee for review.

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Hubbard County Government Center
Park Rapids Enterprise file photo, March 2020

The Hubbard County Board heard a proposal for a countywide, drug paraphernalia ordinance.

If approved, it would be the first of its kind in Minnesota.

Hubbard County Attorney Jonathan Frieden, who is also a Hubbard In Prevention Coalition (HIP) member, presented a draft ordinance that would require a license for any retail establishment with over 25% inventory or sales in regulated drug paraphernalia items.

The proposed ordinance would also prohibit these stores from being within one mile of certain locations, such as schools, churches, candy stores or parks.

County commissioners agreed to send the matter to a standing committee for further review.

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Legal vs. illegal

At Tuesday’s meeting, Frieden explained that HIP is a nonprofit dedicated to prevent childhood use of alcohol, tobacco, controlled substances and other drugs.

Frieden noted that the Park Rapids City Council considered an ordinance banning the possession, manufacture, delivery and advertisement of drug paraphernalia.

“The problem with that, of course, is that paraphernalia, itself, can be legal,” he said. A pen for instance, can be purchased at a big box store and used to smoke methamphetamine, he said.

The city ultimately declined to move forward.

The proposed county ordinance differs from the city’s in that it requires licensing, but does not make the sale outright illegal, Frieden continued. “If, at the end of the day, the state, at the end of the road, makes marijauna legal, which is possible, then we’ll have an ordinance here in place to regulate the sale.”

The ordinance defines drug paraphernalia as “all equipment, products and materials of any kind, except those items specifically authorized under Minnesota Statute chapter 152 or the Uniform Controlled Substances Act, which are knowingly or intentionally used primarily in (1) manufacturing a controlled substance; (2) injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance; (3) testing the strength, effectiveness or purity of a controlled substance, or (4) enhancing the effect of a controlled substance.”

Examples listed in the draft ordinance are kits for growing a controlled substance, water pipes, bongs, sifters, diluents and adulterants, among others.

Frieden recommended that a committee review and discuss the draft.

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One question, he continued, is who would be the licensing authority, whether it’s the county auditor, environmental services or some other county department.

The main goal of the ordinance, Frieden reiterated, is to protect children from going into a store and buying drug paraphernalia.

County commissioner Char Christenson expressed her support, remarking it’s better to be proactive than reactive. She recounted talking to county commissioners in other states where recreational marijuana has been legalized.

“This has the opportunity to ruin the climate of your county. They talked about homelessness. They talked about dirty money,” she said.

Enforcement concerns

County commissioner David De La Hunt questioned enforcement.

“How is ‘intended use’ going to be determined because any household item could be considered paraphernalia if it’s used for that purpose?” he asked. “Obviously, if you have a mixing bowl and a spoon, which everybody has in their house, and you’re trying to determine intended use, what are going to be the guiding things in this ordinance that make you able to prove its intended use?”

Frieden explained that Minnesota Statute 152 makes it illegal to possess drug paraphernalia. “The way that’s defined is it has been used or is being used for controlled substances,” he said.

De La Hunt asked if those who use marijuana for medical reasons would still have access to what they need.

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Frieden said there would still be an opportunity to have such a store in Hubbard County, but under this ordinance, it would need to be licensed.

Hubbard County Sheriff Cory Aukes noted there is a drug paraphernalia shop outside of Park Rapids’ city limits.

“Intended use to a trained officer is very, very clear,” he added. For example, when officers conduct a vehicle search and see a lightbulb in plain view with a hole and burnt residue on it, it will be looked at differently.

Aukes said he was in favor of a committee evaluating the ordinance further.

County commissioner Tom Krueger said, if the state does approve recreational marijuana, the county should push for local control.

This is a good start, Krueger said of the draft.

When asked if any other counties have adopted a similar ordinance, Frieden replied “no.”

READ THE FULL DRAFT ORDINANCE HERE:

Proposed Hubbard County Drug Paraphernalia Ordinance by Shannon Geisen on Scribd

Unnecessary work?

County commissioner Ted Van Kempen said the Minnesota Legislature talked about legalizing marijuana in the 1970s, 1990s and 2019, yet it never came to fruition. He doubted there was enough support for a bill to pass this session.

Van Kempen said county residents he spoke to were not in favor of more government control nor saw a need for the ordinance, particularly at the north end of the county. “They feel it’s a Park Rapids problem,” he said.

Van Kempen said he was aware of a smoke and hemp shop in downtown Park Rapids. Minnesota is a T21 state, he said, ensuring the enforcement of the commercial tobacco sale age of 21 years old. Van Kempen said store owners could simply prohibit those under 21 from entering their establishment.

He pointed out that “alcohol is the most used and abused drug in the world.”

“I don’t like the idea of spending taxpayer dollars and county time and resources on an ordinance that no other county has,” he said. “Eighty-seven counties and none of them have a paraphernalia ordinance.”

Krueger noted that marijuana isn’t nearly as measurable as alcohol in terms of intoxication.

Frieden agreed that’s a problem.

Legal challenges?

County Administrator Jeff Cadwell emphasized the county is discussing business regulation, not the impact of drugs within the population.

“I think it’s really important to separate those two items,” he said. “From that standpoint, it is no different than requiring a license for somebody to sell tobacco or alcohol in the community.”

Christenson said, “I don’t have a problem with being first in any county in the state of Minnesota for any reason if I think there’s a substantial positive impact to the public and the public supports it.”

Cadwell offered a word of caution. “You’ll put a target on your back,” he said. “The wording is going to be really important. Public support is really important. Your endorsement is really important because it is going to be challenged.”

Frieden agreed there could be legal challenges “constitutionally, whether or not we … as a county can regulate items that are otherwise legal to possess.”

Shannon Geisen is editor of the Park Rapids Enterprise.
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