The Moorhead City Council Chamber was fairly well packed Monday night for what everyone attending hoped would be the finale of an ongoing debate between four individually owned businesses in Moorhead and Chief of Police David Ebinger, each bringing along their own expert witnesses testifying for their side in the three-month-long debate about the so-called “head shops” all presently situated on the eastern side of the Red River after being driven out of Fargo.

Boiling it down, Tom Tepley, a respected 30-year business owner in Moorhead, is not only fighting for a business he has on Main Avenue in Moorhead, he’s also fighting for what he believes to be a total intrusion into the lives of everyday citizens by an autocratic city department head with an agenda. Translation: an over-zealous Police Chief with less than a couple of years left before retirement, who appears to be more concerned with what North Dakota’s law enforcement agencies expect Moorhead is going to do to shut down four thriving businesses selling tobacco products and so-called paraphernalia. What is not as clear is whether the assorted pipes Chief Ebinger brought in to show the audiences at home and those in attendance at the Moorhead City Council meeting are in fact considered by law to actually be “paraphernalia” until (and even if) they are used for an illegal purpose, such as smoking marijuana or any other illicit drug. The fact is, until a pipe is used, there is no proof as to how it will be used. The old adage “if it looks like a duck and walks like a duck…” is not how our law enforcement is expected or permitted to determine when a person has broken a law. At least not yet. Granted, North Dakotans allow it in their state, but in Minnesota we usually expect a lot more from our law enforcement. Proof is normally paramount in arresting a person in Minnesota. Well, at least for now.

However, should the city council of Moorhead determine to ban Discontent, Mellow Moods, Pyromaniacs, and Mother’s Records from selling their inventory of pipes and other products thought to be associated with the use of illegal drugs, regardless what level of law-breaking it poses, Moorhead will soon become just like North Dakota and other places that impose criminal charges on people for simply selling to a customer an item that law enforcement has deemed to be for illegal use, without ever having proof that it will be used for anything other than tobacco, or just to look at, for that matter. It would be like stopping someone for speeding before the person has actually gone over the speed limit, simply because they are driving a red Porsche. Somehow, I really don’t think most Americans would tolerate that.

What interests me most is that Ebinger never was asked by anyone on the Moorhead City Council how many drug arrests they have made in the last year (or even the last three months) of anyone who had a pipe or any type of paraphernalia on them at the time of the arrest. Better yet, if they have, by chance did they inquire where the paraphernalia were purchased: a Moorhead store, off the internet, Fargo or some other city? When one City Council person did ask how much Chief Ebinger believed a ban on the pipes would cut down on the use of illegal drugs, Ebinger replied “it will certainly eliminate some; it’s not a silver bullet.”

THE “CRIME” AND THE PENALTY

Well, that much the chief certainly is right about; banning pipes will definitely not be a ‘silver bullet’ or much of a deterrent either. Having grown up in the drug culture of the 1960’s and 70’s, I recall seeing plenty of marijuana joints being passed around at parties. I do not recall seeing terribly many pipes. Most people I knew in high school had very nosey mothers who cleaned their rooms and put their clothes away after being washed. The last thing anyone wanted was for their mom or dad to find a pipe stashed in their underwear drawer or accidentally left behind in the family sedan. No, back in those days, people who indulged in smoking, rather than drinking, used Zigzag rolling papers. And in a recent meeting of the Moorhead Business Association, I asked Chief Ebinger if he planned on banning all the gas stations and food and fuel stations and liquor stores and drug stores that carry rolling papers from continuing to sell them. Ebinger reminded me that as a native southerner, I should know there are people who still roll their own cigarettes. Seriously, I may be from the south, but I have never seen anyone I ever knew smoking a rolled cigarette –not from the south and not from here, either. The only time I have ever seen a rolled cigarette, I’m pretty positive there wasn’t any tobacco in it. My gut feeling is, after having raised two teenagers, who had a very nosey mother —Moorhead can ban all the pipe shops it wants to, but I guarantee you, it will not help in the fight against smoking marijuana or anything else if a teenager or anyone older is determined to do it. They will resort to Zigzag rolling papers if they have to, and whatever other “tools” of the trade are used for cocaine, hash, meth, or speed.

What bothers me as much as trying to obliterate four businesses from Moorhead that we cannot afford to lose, is an issue that has not been brought forth yet. That would be the brushed-aside, “it’s only a petty misdemeanor — don’t worry about it” attitude of having a high school or college-age person charged and penalized for having a pipe in their possession. The pipe will be confiscated, and depending on where they are when popped by the police, can and will make an enormous difference as to what they eventually are charged with.

In Minnesota, County Attorney Matt Greenly tells me that someone busted with a pipe, aka “paraphernalia,” will have to fork over the pipe, and depending upon the residue found in the pipe, the offender will be charged accordingly. If it’s only marijuana, the penalty will be a simple petty misdemeanor, which can and probably will cost a maximum fine of $300. However, if something other than marijuana is found – say, cocaine or meth – then that’s a felony, and the offender is now looking at whole different ball game. The thing is, even if it is a petty misdemeanor in Minnesota, it will go on the person’s permanent record. Mr. Greenly tells me that in Minnesota, petty misdemeanor charges can be purged within a year if the person stays out of trouble and has no further charges for any other violations.

In North Dakota? Not so easy. I spoke with Tracy P. in the Cass County States Attorney office, and she explained that in North Dakota there is no “petty” misdemeanor. North Dakota has two levels of misdemeanors: “A” and “B”.

An “A” misdemeanor is a higher level crime than a “B,” and if someone is busted with paraphernalia in North Dakota, that is a level “A” misdemeanor, for which you will receive a deferred-imposition sentence; that sentence will eventually be dismissed if it’s a first-time offense, and the pipe residue is only marijuana. A “B” misdemeanor would be a charge for minor consuming, or petty theft—provided the amount stolen was relatively small or even possession of half an ounce of marijuana, unless you are driving and get busted! So, if you smoke dope in North Dakota, your best bet is to buy rolling papers and do not get behind the wheel of an automobile. The misdemeanor charge isn’t as heavy and can be dismissed from your permanent record someday, hopefully.

However, if the residue happens to be synthetic marijuana, or meth or any other drug with a felony penalty, it will go on your permanent record and will not be deferred or dismissed. Ever. Yes, you will have to explain this lapse of clean living and good judgment anytime anyone anywhere checks out your arrest record for employment. Good luck.

Regardless which state you happen to be in if you get busted, be it a petty misdemeanor that is eventually “purged” in Minnesota, or a level “A” or “B” misdemeanor in North Dakota, if you have any ideas about getting into law enforcement, becoming an attorney, or landing any other job where anyone in law enforcement can see your permanent record, it might be time to rethink the path you have been on. North Dakota’s BCA (otherwise known as the keeper of permanent criminal/arrest records) does not have a method to purge or expunge anything from anyone’s record. That is why someone with a 20-year- old DUI or DWI cannot get into Canada today. North Dakota still has you listed as having a DUI, and we all know how Canada feels about drunk drivers entering their country.

Interestingly, while doing this piece, I found out that the city of Fargo has no actual ban on smoke shops or any other type of shop from selling “paraphernalia.” It’s the state of North Dakota that has made it illegal, and that’s why the State’s Attorney would be prosecuting, and not any of the three city attorneys of Fargo. Fargo presently has no ordinance banning the sale of pipes or paraphernalia.

Whether Moorhead will eventually pass a ban or not is yet to be seen.

However, I certainly hope those in favor of this ban are fully aware of the consequences to those who are selling and buying pipes in the stores Moorhead presently has, and the inevitable ramifications that possessing a banned marijuana pipe will make in the lives of many students who go to school at MSUM, Moorhead Technical College, Concordia, Minnesota School of Business or Rassmusson College, or any teenager who has reached the ripe old age of 18 and is now considered an “adult.” They may also want to keep this in mind –sage advice from a mother who has raised two teenagers: even the best parents are not always fully aware of all their teenagers’ and young “20-something” friends’ activities and secrets, especially if it is something they prefer you don’t know about. Coming down as hard as this ban will hit in Moorhead, perhaps it might be a good idea to keep your child or grandchild, and their future with a petty misdemeanor charge on his or her permanent record, in mind when you make that last vote next week.

For questions or comments email: sooasheim@aol.com or asheimrote@aol.com