Oct 1 2011 – Video of Jay Selthofner speaking at Madison Harvest Fest

APPLETON — Police will ask retailers throughout the city this spring to clear their shelves of any items that could be used to inhale, conceal or alter illegal drugs.

In a letter aimed at convenience stores, Appleton Police Chief Pete Helein will seek compliance with state and local paraphernalia laws that can be hazy, a draft distributed to city staff this month showed.

“This is an ongoing effort for three or four years to educate retailers on paraphernalia disguised as other items,” Helein said. “It’s a crime-prevention strategy and it sends a message to the community that we don’t want this in our stores.”

Helein said the effort isn’t aimed at writing tickets or closing shops, but to gain voluntary compliance and discontinue certain sales.

Retailers caught selling paraphernalia can be fined for breaking an existing city ordinance and, under a law passed in 2010, can lose points on beer and liquor licenses that could lead to revocation. Criminal charges carry higher fines and the potential of jail time.

As part of the new initiative being undertaken by police, Lt. Steve Elliott is showing retailers items that could be tied into drug use. He said some stores brazenly sell “kits” with glass pens on shelves next to steel wool, which can be used to smoke crack cocaine or methamphetamine.

“Some gas stations sell glass tubes with roses that are clearly used for crack pipes,” Elliott said. “We can develop probable cause for a crime if the business owner knows that the item is going to be used for illegal substances.”

Though specialty smoke shops aren’t the target of the spring reminder letter, Elliott said they should also take heed of the police warning.

Elliott said shops can sell glass pipes, bongs, grinders and “one hitters” through what he considers a legal loophole, but are on the edge of selling drug paraphernalia if police can prove intent to use illegal substances.

“I think it’s horribly irresponsible for Marley’s and other head shops to contribute to the drug problem in our society,” Elliott said. “If you’re concerned about our community, you would never dream about selling this stuff.”

Shop owners, advocates defend sales

For Andy Thornell, owner of Marley’s Smoke Shop, 614 W. College Ave., the law clearly carves a niche for tobacco products, and said once it leaves his door he can’t be held responsible for individual actions.

“We have signs posted all over that make it clear any mention of illegal substances won’t be tolerated,” Thornell said. “You have to be 18 to buy tobacco products so you have to be 18 to enter our store.”

Thornell said his locally blown glass products fill a demand, but vendors routinely pitch items that could get him into trouble.

He said herbal incense, or synthetic marijuana products are sold for huge margins at other shops, but are not allowed at Marley’s. The same goes for the glass stem pipes or “rosebuds” that have the Appleton police concerned.

The eradication approach isn’t new to Wisconsin, said Jay Selthofner, a pro-marijuana advocate with the Northern Wisconsin chapter of the National Organization for the Reform of Marijuana Laws.

Wisconsin Dells developed a “zero-tolerance” policy with head shops selling pipes and other items in 2011, but the tactic only pushes sales across city boundaries, Selthofner said.

“I think some police officers themselves are sympathetic to the fact that the war on drugs isn’t working, especially with marijuana,” Selthofner said. “Maybe a better approach than a crackdown would be to partner with these headshops to distribute educational information about drug and substance abuse.”

Enforcement tricky

In determining what is and isn’t drug paraphernalia, police and courts consider a number of circumstances. Those include statements by the owner, proximity to a controlled substance, residue of a controlled substance, direct or circumstantial evidence of the intent of the owner, instructions concerning its use, and the existence and scope of the legitimate uses for the object in the community.

Though there are gray areas,possession or sale of items that could be primarily intended to inhale drugs is illegal, said Kirk Everson, a Fond du Lac criminal defense attorney who specializes in marijuana cases.

He said the state’s marijuana possession laws are harsh because a second offense carries a felony charge and a maximum of more than three years in jail. That’s why he said it’s routine for clients to plead the charges down to possession of drug paraphernalia, which usually carries a fine or maximum of 30 days in jail.

“I think we should focus on the real drug problems. I don’t think anyone wants crack or heroin in our towns, and we’re united on that,” Everson said. “But the country and state is split on marijuana and a growing group is in favor of legalization. I actually think police can work with the pro-marijuana people on this.”

When Helein’s letter was first presented to the Safety and Licensing Committee, Alderwoman Sarah Garb expressed concerns about the effort, given the confusion about specific items.

“The letter sounds threatening: you have this stuff, it’s illegal and we’re asking you to get it out of there,” Garb said. “But it heightens my concern about the incentive to get rid of things that aren’t illegal on their face but only in context … To me, this says ‘get this out of your store or else.’ That seems like it works in a perverse way to get people to comply.”