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Dave Olson, Published January 11 2013

Judge upholds Moorhead’s drug paraphernalia ban

MOORHEAD – A U.S. District Court judge has upheld the city of Moorhead’s ban on selling and possessing drug paraphernalia, dismissing a lawsuit filed by a Moorhead businessman.

At issue was a city ordinance that makes the possession or sale of items deemed by law enforcement to be drug paraphernalia a misdemeanor offense.

The suit, filed in federal court about a year ago, claimed the ordinance and the city’s plan for enforcing it were unconstitutional.

Employees of the Discontent store at 815 Main Avenue in Moorhead were named as plaintiffs in the suit.

Discontent has since closed and owner Tom Tepley has set up a new business at the location called Just For You Shirts, a custom T-shirt printing business.

In his ruling, Judge Michael Davis said both the ordinance and the city’s intended enforcement policy were constitutional.

“The ordinance contains a list of per se drug paraphernalia, which provides clear guidelines of prohibited conduct,” Davis wrote in his ruling.

On the other hand, Davis noted that whether or not some legal herbs and tobacco may be smoked in the devices at issue could be relevant if there is a prosecution under the ordinance.

“But at this point,” the judge added, “there is no prosecution. Instead, all evidence shows that the city intends to enforce the ordinance as written.”

Tepley said Friday he had not seen the ruling but had received a synopsis from his attorney.

He said he has 30 days to appeal the ruling and at this point isn’t sure what he will do.

Tepley said a number of people have offered to support him financially if he decides to continue the civil legal battle and he is weighing whether to take them up on the offer.

Moorhead Police Chief Dave Ebinger said the court ruling wasn’t a surprise to him.

“We contended all along the ordinance is constitutional, and our intent to enforce it as it is written is constitutional,” Ebinger said.

He added that the League of Minnesota Cities provided legal counsel to defend Moorhead’s ordinance, so the lawsuit wasn’t a drain on Moorhead taxpayers.

Readers can reach Forum reporter Dave Olson at (701) 241-5555