Smokin' mad

The battle over what is and isn't 'drug paraphernalia' comes to a head

click to enlarge WHIPPED INTO ACTION: Rockin' Cards and Gifts owner Randy Heine stands by stacks of boxes containing whipped cream chargers in the back of his store. - Alex Pickett
Alex Pickett
WHIPPED INTO ACTION: Rockin' Cards and Gifts owner Randy Heine stands by stacks of boxes containing whipped cream chargers in the back of his store.

Stoners and tobacco enthusiasts alike may have a hard time finding their wares after next week's Pinellas County Commission meeting. On Sept. 18, commissioners are expected to pass a proposed ordinance restricting the sale of items they deem "drug paraphernalia," including water pipes, certain rolling papers, home drug test kits and whipped cream chargers containing nitrous oxide.

But the law won't pass without a fight. A group of retailers ratcheted up their campaign against the ordinance last week by distributing fliers and buying advertisements beseeching the public to come out in force against the new regulation.

"Basically, what we need is people to object," says Leo Calzadilla, owner of Purple Haze, a tobacco accessories store in South St. Petersburg.

Calzadilla's store is just one of dozens targeted by the county, accused of selling veiled drug paraphernalia. Calzadilla, who maintains everything in his store has a legal purpose, says the commission is engaging in "selective enforcement." In July, Calzadilla took a Planet reporter to Home Depot to demonstrate that many stores carry items that could be construed as drug paraphernalia ("Messing With Our Heads," July 12).

Commissioner Kenneth Welch, the chief proponent of the ordinance, doesn't buy Calzadilla's argument.

"The purpose [of the ordinance] is to stop the sale of drug paraphernalia when the retailers should reasonably know these items sold will fuel the drug trade," Welch says. "The folks that are selling these things know what they're selling."

In addition to lowering the standard by which retailers can be prosecuted for selling certain items, the proposed ordinance also changes the penalties from a felony (as it is in state law) to a misdemeanor charge.

Calzadilla says this is a calculated move: If the penalty is only a $500 fine, he reasons most retailers will choose to pay the fine instead of spending thousands on a lawyer. But this will leave owners wide open to a nuisance abatement order that could shut the business down. The only other option for retailers is risk bankruptcy by going to court.

"Basically it's a no-win situation for tobacco shop owners," he says.

For Randy Heine, owner of Rockin' Cards and Gifts in Pinellas Park, this ordinance is just the latest attempt in a 30-year county campaign to shut down his store. To Heine, it's not a drug-fighting measure, but a personal attack on the two outspoken retailers stemming from a heated encounter between Calzadilla and former NAACP president Daryl Rouson at his store.

On June 23, 2004, Rouson entered Purple Haze to confront Calzadilla for selling drug paraphernalia. When Rouson refused to leave, police arrested him under a trespassing charge. He was convicted 10 months later. The incident prompted Rouson to approach the county commission requesting something be done about the stores. He found a receptive ear in Welch.

If the ordinance passes, Heine and Calzadilla say they will fight it on constitutional grounds. They are confident the wording in the ordinance creates more holes than it fills. They aren't alone in that opinion.

"The ordinance by its face engages in complete overkill," says Robert Vaughn, an expert in drug paraphernalia litigation. The Nashville-based attorney, who wrote sections of the federal paraphernalia law, maintains the Pinellas County ordinance faces a host of problems in its language and vagueness, and may not pass constitutional muster.

Whatever the outcome of Tuesday's meeting, both parties say it will set a standard in Florida for how county governments deal with supposed headshops. Those lazy citizens figuring they will just drive the extra 20 miles to Hillsborough County for their accessories, where there is no such ordinance, may have a rude awakening.

"If it happens to us in Pinellas County, it's going to happen in other counties," Calzadilla warns. "It's just a matter of time."