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Legal haze



On July 19, shortly after noon, a U-Haul truck pulled into a quiet, run-down Altamonte Springs strip mall on State Road 436. Ten armed police officers jumped out of the back of the truck and stormed into Amsterdam Dreams, the mall's middle store. Five of the police wore ski masks to protect their identity. All of them screamed about "securing the premises" for guns and drugs.

The clerk who drew that unfortunate Friday-afternoon shift watched as the troops swarmed the store. "It was so fucking frightening," recalls Kaya Spears.

Until that Friday, Amsterdam Dreams sold water pipes, specialty tobaccos and tobacco alternatives, T-shirts, backpacks, urine cleansers and other "counter culture" items. Nowadays there's a lot less merchandise on the shelves.

Police ordered Spears to sit on a couch in the store's Internet cafe with her hands in front of her. Then they made her take off her turban -- she's a Rastafarian -- and searched her long dreadlocks for drugs. They took carpet samples, and they tested Spears' personal water pipe for evidence of marijuana. (The pipe came up clean -- all she had smoked in it was a specialty Egyptian tobacco.) Meanwhile, other officers held up a copy of Orlando Weekly during the raid and laughed about the fact that Amsterdam Dreams had just been voted "Best Smoke Shop" by Weekly readers.

Eventually, police read Spears the lengthy search warrant that prompted the raid. Then, over the next eight hours, they confiscated nearly everything in sight: 836 pipes, 129 bottles of cleanser and 147 unspecified miscellaneous items. They even took hemp pants and T-shirts that pictured Bob Marley on them -- all told about $35,000 worth of merchandise.

The police also hit four other stores that day. Most of the stores had been around for three to five years, selling their wares openly. They advertised on the radio and in newspapers (including this one). Until the raids, there was no indication that they were breaking any laws.

The Seminole County stores discovered the hard way that the state's paraphernalia laws are vaguely written and selectively enforced. While smoke shops in Volusia and Orange counties continue to operate in the open, Seminole shops have empty shelves. While Volusia and Orange shop owners continue to make a living, Seminole shop owners are facing prison sentences.

Even if they dodge that bullet -- and there's a very good chance they will -- their merchandise will probably be destroyed.

Clear as mud

Drug laws have always been hazy. The fact that alcohol is OK but marijuana isn't, or that crack cocaine has stricter sentencing guidelines than powder cocaine seems to make little sense.

Drug paraphernalia laws are no clearer. In short, it's legal to sell someone a water pipe, but illegal to sell someone a water pipe if they intend to smoke pot with it. The same rules apply to selling scales. By state law the seller should know -- or in legalese, "reasonably ought to know" -- the buyer's intent.

Under Florida statutes -- Title 46, Chapter 893 -- cops can make the case that a water pipe is "paraphernalia" in a number of ways. Obviously, if there's pot in it, it's paraphernalia. But it's also paraphernalia if there's a bag of weed close to it.

That's the guilt-by-association logic police apply to smoke shops: If you sell a water pipe in a store filled with posters of marijuana leaves, "High Times" magazines and urine cleanser, prosecutors can argue that you should know what's going on. (And the signs that instruct customers to not refer to pipes as "bongs" don't help the case.)

At trial, they will usually put a policeman on the stand and ask him if he's ever seen someone smoke tobacco in a water pipe. When the cop says no -- the most likely scenario -- that's enough to get a conviction.

Though Seminole County police used state laws to justify their raids, the federal laws are similar. In 1994, however, the U.S Supreme Court interpreted the federal rules more broadly than Florida's law, lowering the burden of proof prosecutors must meet for proving water pipes are paraphernalia.

Here's the subtle difference, according to smoke-shop industry attorney Robert Vaughn: In Florida, prosecutors must use "expert" testimony to prove an item is paraphernalia (in other words, the policeman on the stand). In federal court, the prosecutor simply asks the jury, "What do you think this 6-foot water pipe is used for?" No other evidence needed.

Just about any smoke shop could fall under federal jurisdiction since nearly all buy merchandise from across state lines. Even if the local police don't care, the FBI or DEA might.

Until recently, the Justice Department has largely looked the other way. With John Ashcroft now the nation's top lawyer, that's changing.

According to Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws Foundation, the Bush administration is aggressively pursuing paraphernalia charges. Recent news stories seem to bear that out. In Des Moines, Iowa, federal prosecutors pressed charges against Chris Hill, owner of the Sarasota-based Chills Inc., a smoking-accessories wholesaler. In April, Hill pleaded guilty to paraphernalia charges and will be sentenced later this month. Smoke shops in St. Augustine and Pittsburgh also have been hit under federal law.

Anything goes

The tight-lipped Seminole County Sheriff's Office won't say what prompted its six-month investigation into Amsterdam Dreams, Pipe Dreams, The Pipe Emporium, The Abyss and Purple Ringer, the five shops raided July 19.

But Vaughn, the lawyer who represents Pipe Dreams, says the police told him it started with neighborhood complaints. He also says police told him that, during their undercover purchases, clerks sold to agents even after slang words like "bong" slipped out, a seemingly clear indication about the customer's intent. (Police in Seminole County won't confirm that and say it doesn't matter.)

Spears at Amsterdam Dreams says police told her that they finally found someone -- Seminole County Circuit Court Judge Kenneth R. Lester Jr. -- willing to sign the search warrant.

While the Seminole smoke shops had urine cleansers confiscated -- they're taken as evidence that marijuana users buy water pipes -- the same items can be bought at any health store, including GNC.

The smoke shops all sold tobacco products -- herbal smoking alternatives or specialty tobaccos that were displayed alongside the water pipes. At Amsterdam Dreams, Spears says, they sold about 10 packs of herbal tobacco a day, more than they sold water pipes. And interestingly enough, police left the stores' supplies of rolling papers on the shelves, which begs the question: If water pipes are illegal, why aren't rolling papers?

The answer is hardly comforting to anyone who makes a living selling smoking accessories. "Theoretically, anything can be drug paraphernalia," Vaughn says. "And nothing has to be."

Inconsistent laws are a fact of life, argues assistant state attorney James Carter, who's prosecuting the Seminole cases. "Check with the AAA," says Carter. "See how speeding laws are enforced in different places. Look at the statewide punishments applied to grand theft. I'm sure you'll find they're punished less harshly in Dade County than Bay County. It's the nature of community -- community standards."

Vaughn provides the corollary: "If it's art in Miami, `it can be` porn in Orlando," he says. "It could be a tobacco pipe in Miami and a bong in Orlando. It's based on the community's interpretation."

Though the Seminole County stores operated in the open for years, Carter says they should have seen it coming. "They weren't careful at all. One of the stores has got a goddamn mannequin with a bong hooked to a `gas mask`. They had cocaine sorters, grinders, stuff for using `drugs`."

According to Carter and Seminole County Sheriff's spokesman Steve Olson, the cops got the green light from a similar case -- Morrison v. Virginia -- upheld by the Virginia Court of Appeals in January.

The appeals court upheld Fatty Shack owner Brian Morrison's paraphernalia conviction even though Morrison never used the word "bong" in dealing with customers and sold tobacco products alongside water pipes. The ruling isn't legally binding in Florida, but the Seminole sheriff's office took it as a good signal.

There is one main difference between the raids in Virginia and Seminole County, however: In Virginia, police arrested the shop owner after he didn't comply with a warning. In Seminole County police gave no warnings.

Florida state of mind

Drug laws are generally written to the advantage of police. In Florida, for example, police can take your car if it has drugs in it, even if the drugs aren't yours. Your car then gets sold at auction, even if you did nothing wrong.

While the Sunshine State enacts and enforces draconian rules, other parts of the country are moving in the opposite direction.

Nevada, for example, will have a ballot amendment to legalize small amounts of marijuana this November; Arizona voters may decriminalize it as well. Other western states have decriminalized medical marijuana, though the Justice Department, under Ashcroft, still incarcerates medical users.

Florida is still married to the idea that, if you give police enough money and power, and give users and sellers long enough prison terms, the scourge of drugs will eventually be wiped out.

For the smoke-shop owners in Seminole, that attitude doesn't bode well for them continuing their line of business. While no charges have been filed so far -- save for a Purple Ringer customer and a Pipe Dreams clerk who were allegedly caught with drugs during the raids -- the ball is clearly in the prosecutor's court. Sans merchandise, it's unlikely the stores can stay in business, much less pay the legal bills for a strong defense. If prosecutors do press charges, the owners could face substantial jail time: Selling paraphernalia is a third-degree felony, meaning up to five years per count. Every pipe could be a single count, and that adds up quickly.

Oddly enough that's not likely to happen. In about 80 percent of the cases, according to the NORML Foundation's St. Pierre, prosecutors forego criminal sanctions and instead seek civil forfeiture of the merchandise. For a criminal conviction 12 jurors have to find the owners guilty "beyond a reasonable doubt." In civil court, only seven of 12 jurors has to find that a "preponderance of the evidence" suggests the products are illegal. It's an easier burden of proof.

More likely, prosecutors will force the smoke-shop owners into a settlement, dropping the lingering threat of criminal sanctions if the owners let the cops destroy their merchandise.

According to Vaughn, smoke-shop owners might win at the state appellate-court level if they go "balls to the wall." Two years ago, he represented a smoke shop in Pinellas Park, and was able to poke holes in the search warrant and eventually get it suppressed. But that's a big risk with no guarantees. And even if you beat the state and federal laws, local ordinances can be tweaked to allow the cops to come after you again.

"The second option," he says, "is to try to make peace with them. You figure out what's pissing them off."

Earlier this year, Daytona Beach passed an ordinance cracking down on smoke shops. Most shops didn't challenge the new rule -- instead, they negotiated with the authorities and ended up keeping 40 percent of their merchandise, Vaughn says. Similarly, he thinks smoke shops should lose the pot-heavy head-shop motif and get rid of any hint of drug use. By going with a more traditional, tobacco-store style, he says, they could probably sell water pipes without being targeted.

Pipe dreams

Amsterdam Dreams is largely barren now. Cabinets and shelves that once were crammed with merchandise are now empty. Every once in a while, a befuddled customer comes by and Spears goes through the whole story.

The $1,200 rent check is coming up, and they're not sure how they'll pay it. The staff is banking on their Internet cafe or maybe, eventually, selling CDs, but right now the future looks dim.

Owner Dwayne Edwards was vacationing in Amsterdam when the raids happened. His mother, Christa Edwards, hopes he stays over there for a while.

The Purple Ringer and The Abyss are in the same predicament: anxiously awaiting a resolution. They all hope prosecutors will cut a deal by September, as each day brings new customers wondering what happened to their supplies of pipes. (The Abyss still has a dozen or so small pipes that the cops didn't take.)

The Pipe Emporium will probably shut down soon, says owner John Darmanjian, who says he lost $6,000 worth of merchandise. Selling candles and incense, he says, won't pay the bills. Maybe, Darmanjian muses, he'll go into the adult-entertainment business -- an industry Seminole County seems to revile even more than smoke shops.

While he's on the phone, a customer asks him where his pipes are. "Go to Orange County," he says.

If the Orange County Sheriff's Office has plans to conduct similar raids, it's not letting on. According to public information officer Carlos Torres: "Every `smoke-shop` location has those different products that they sell. If it is brought to our attention, we will take action."

But it's possible -- perhaps likely -- that Orange County will follow Seminole's lead. In the last seven years, the Metropolitan Bureau of Investigation, an interagency group that acts as the area's vice squad, has raided eight Orange County smoke shops. But, MBI director Bill Lutz notes, there hasn't been a raid in several years.

That's not good news for Pipe Dreams owner James Knapton, who recently opened Pipe Dreams II on Orange Blossom Trail.

Right now, all that's left at the original Pipe Dreams are candles and a few corncob pipes. Police didn't take them, presumably, because you can buy one just about anywhere and smoke anything you want in it.


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