UP IN SMOKE?

Lawmakers Are Considering Whether To End The Legal
Distinction That Bans The Sale Of Pot-Smoking
Paraphernalia But Allows The Same Merchandise To Be
Sold For Use With Tobacco. One Man's Legal Smoking
Accessory Is Another Man's Illegal Drug Paraphernalia.

But if Minnesota State Sen. Amy Koch, R-Buffalo, has her way, a bong
will be a bong will be a bong.

And it will be a crime to sell, buy or use one.

"We recognize that you can smoke pot out of a pop can, an apple, a
light bulb," Koch said. "We're going after the bongs."

Selling drug paraphernalia is already illegal in the state. Koch said
her bill would strengthen the current law by taking away what she
calls a "loophole" in the legislation.

Shop owners can sell hand pipes, one-hitters and water pipes because
the state's drug paraphernalia law allows them to presume their
products are being used to smoke tobacco -- exclusively.

In fact, some shops say they either correct a customer's language or
send them out the door if they insist on using pot vernacular.

Case in point: On a recent afternoon at Maharaja's in downtown St.
Paul, where swords and collectible figurines are sold alongside
Grateful Dead posters and glass pipes, a customer asked if a small
pouch of the legal herb salvia divinorum would be enough for a "joint."

The clerk asked, "You mean a hand-rolled cigarette?"

Koch's new bill lists exactly what "paraphernalia" is and includes
bongs, glass pipes, dugouts and one-hitters. It excludes traditional
pipes, like corncob pipes and hookahs.

Koch had presented similar legislation last session, but the bill was
pulled from a public safety omnibus bill at the last minute, she said.

This year, the fate of Senate File 278 is still unknown. It was
referred to the Judiciary Committee in January but has not yet had a
hearing. The House companion bill is also in committee.

Koch said her bill is aimed at places that sell paraphernalia,
specifically the nonmetro shops that may have a selection of pipes
alongside groceries or cigarettes. She knows that bigger stores, like
the northwest metro's Down in the Valley chain or Maharaja's in St.
Paul, could also be affected.

"I really think that, for our community, it was really the exposure to
the kids," Koch said.

If the bill became law, it would go into effect Aug. 1. Violations
would be considered a misdemeanor.

Most head-shop owners were reluctant to talk about the new bill, but a
few said they are not catering to kids. No storeowner mentioned
marijuana; most said their wares are for tobacco and legal herbs. No
one would allow his or her collection of pipes to be
photographed.

Paula Schleis, owner of Dazy Maze Incense and More in Forest Lake,
said Koch's bill goes too far.

"It's really a shame we have to deal with this again," said Schleis.
"I've had my store for eight years, and I run a clean shop."

Schleis said she sells a lot of " '70s stuff," like beaded curtains,
posters and jewelry, and has a back room where she keeps her tobacco
accessories.

"The front of my store is open to everybody," she said. "To get into
my back room, you have to be 18 years old."

Keith Covart has run the Electric Fetus music and gift store in
Minneapolis since 1968. Since starting on the West Bank, he has opened
stores in Duluth and St. Cloud and has seen cultural mores change
regarding smoking accessories.

He said that when legislators start defining what his products are
used for, "it's scary legislation."

"It's just a freedom thing," he said. "Can you smoke a cigarette and
not be arrested? Where are we going?"

"If someone states that they want a bong, we say we don't have that
and we ask them to leave," said Steve Hyland, who runs four Down in
the Valley stores, the first of which opened in 1972.

In his 35 years in business, he has seen similar legislation come and
go, he said, and even helped to form a lobbying group to fight it.
This time around, there is no unified front against Koch's bill.

"Nobody seems to be concerned about this," he said. "They don't think
it's going to pass. It's so vague. How do you prove it?"

St. Paul City Attorney John Choi said that "proving it" -- showing
someone bought or sold a pipe for an illicit use -- is time-consuming
and extremely difficult with current laws.

"You've got to prove what was in the mind of the person selling and
the person possessing," he said. "This would be a step towards
addressing some of those proof issues."

At the same time, he added, inadequate resources in both his office
and in law enforcement statewide would limit the number of
paraphernalia cases pursued.

"I don't know if this would change anything in terms of the cases we
prosecute in our office," Choi said.

Add to this the fact that selling drug paraphernalia is a misdemeanor
- -- with a maximum of 90 days in jail and a fine of not more than
$1,000 -- and the bite of the bill weakens.

"We're not going to be shutting anyone down as a result of this law,"
Choi said.

Tom Walsh, spokesman for the St. Paul Police Department, praised the
bill.

"I think the more difficult we make access to those kinds of things,
the better our opportunity to keep people from using those controlled
substances," he said.

Allen St. Pierre, the executive director of the National Organization
for the Reform of Marijuana Laws, said drug paraphernalia statutes
don't have much impact, mainly because they make illegal just a
handful of things people could use to smoke marijuana.

In fact, Koch's bill makes no mention of what St. Pierre called the
fastest-growing segment of the paraphernalia business: vaporizers.

"If they went and took out the things identified as paraphernalia, it
would still leave dozens of legal products," he said.

Robert Vaughn, a Nashville, Tenn.-based defense attorney, has heard
all the arguments for and against paraphernalia.

He has represented clients in 35 states since 1981, he said, in trials
that stem mainly from the U.S. Drug Enforcement Administration's
introduction of a model paraphernalia law in 1979.

"Anything can be drug paraphernalia, and nothing has to be" under
current law, he said.

"Drug paraphernalia is bounded only by the imagination of the drug
user."