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Published January 24 2012

Discontent sues Moorhead over new drug paraphernalia law

MOORHEAD – Employees of Discontent, the embattled smoke shop in Moorhead, are suing the city in federal court over the enforcement of the new drug paraphernalia ban.

Discontent has been closed since Jan. 10, the date the ordinance went into effect. The ban makes possessing or selling items deemed by law enforcement as drug paraphernalia a misdemeanor offense.

Also on Jan. 10, Tom Tepley, Discontent’s owner, delivered a petition to repeal the ban to the Moorhead City Council with nearly 3,000 signatures. The petition is currently being certified, but a public vote on the ordinance wouldn’t likely be held until the next city election in November 2013.

Tepley said he plans to fight the ordinance as far as he can.

“I’m done talking (with the city),” he said. “I’ve tried everything I could to be reasonable about this with the city.”

The federal lawsuit, filed earlier this week under the names of Discontent employees Stacey Anthony, Russell Steele and Jessica Wolf, argues that the items sold by Discontent actually do not constitute drug paraphernalia under the city’s ordinance.

Even so, the lawsuit states that under threat of criminal prosecution from the city, the employees were forced to close the store, which it claims is causing irreparable injury and economic damages.

The lawsuit asks that the city ordinance be declared unconstitutional under federal law and requests a court order to bar the city from enforcing it.

Reached by phone on Tuesday evening, Tepley said a second federal lawsuit would also be forthcoming against the city, though at press time it had not yet been filed.

“I have resources to fight this as far as I can go,” he added. “I’m going to take every legal option I can.”

Former Moorhead City Attorney Brian Neugebauer said the city is confident the ordinance, patterned on North Dakota’s state law on drug paraphernalia, is constitutional and will contest the legal challenge.

Moorhead Police Chief David Ebinger, an outspoken advocate of the ban, declined comment Tuesday.

Randall Tigue, an attorney for Discontent, said the ordinance isn’t that different from Minnesota’s statute, but under state law, in order to prove an item is drug paraphernalia, there has to be intent to use it with illegal substances.

He said in Moorhead, when police say pipes with certain physical characteristics are illegal regardless of their intent, “that essentially puts my clients out of business.”

The Associated Press contributed to this report.

Readers can reach Forum reporter Sam Benshoof at (701) 241-5535