As the staff report reads:
“Staff is not recommending to Council an urgency ordinance at this time, as we are not certain it would address any immediate needs. Currently, one such tobacco paraphernalia business exists and is permitted in the Central Commercial (C-C) zoning district as a specialty shop. An emergency ordinance would not affect the existing use. If Council wishes to pursue an ordinance related to tobacco paraphernalia or sex-oriented businesses, staff would recommend a course of action that includes public outreach, particularly to the Davis Downtown Business Association and the Davis Chamber of Commerce, as well as to individual downtown businesses that may be affected by such an ordinance. Understanding the concerns and needs of these organizations will assist staff in defining problems that may exist and determining whether an ordinance will sufficiently address them.”
As Councilmember Sue Greenwald described from her meetings with the DDBA, the DDBA prefers that we don’t rush forward in the middle of the recession with regulatory reforms on businesses in Davis.
Police Chief Landy Black told council that it’s not the appearance that makes it illegal, it’s the usage. With our staffing, it would be a very low priority to try to enforce this. Things like Hooka pipes have both legitimate and illegitimate uses. We would have to have evidence of illegitimate uses in order to enforce it.
City Attorney Harriet Steiner told the council that many cities have gone to conditional use permits which provide enforcement on the front end rather than having to use the penal code on the back end. One of the things about a conditional use permit is that the city has issues with a particular use or type of business.
Bill Kopper, former Davis Mayor, now is an attorney representing the merchant who is moving from the existing spot to the corner spot in the Anderson Bank Building on Second and G. He said that while this won’t affect his client, he thinks this is a waste of time as there is one business of this sort in Davis, it has been around for a long time, and he doesn’t foresee a large number of businesses coming in to present a problem.
However, Mayor Pro Tem Don Saylor made a long appeal to council that these items are not simply tobacco paraphernalia. He expressed concern that the confusion would cause people to question the need for such an ordinance. Instead he argued that this was in fact drug paraphernalia.
“I think this is a very interesting sort of thorny set of issues. When we describe this as tobacco paraphernalia, it’s hard to get real excited about it. But if you look at things that have actually been sold at the store on Second and G, some of the items match pretty clearly with the items that are listed as drug paraphernalia. I say this from personal observation because several of us have actually visited the store in its former incarnation and its more recent new installation.
In its former incarnation and on Second G it included items that are described under Health and Safety Code 1101 4.5 as drug paraphernalia, specifically items under No.6, containers designed for use or marketed for use in storing or concealing controlled substances. Now they could have been for controlling or concealing any number of things of course. But when you have a Coca-Cola can or a Penzoil oil can that the top screws off and you can put things in it and conceal it on a shelf, it seems pretty clear to me what the intention is.
Now I’m just one subjective person. No.8, item designed for use or marketed for use of ingesting or otherwise inhaling marijuana, cocaine, hashish, or hashish oil into the human body such as caboration tubes and devices or smoking caboration masks. I think it’s pretty clear what a Hooka Pipe is. It’s pretty clear what a pipe for smoking tobacco is like. There are some pipes that defy the imagination as being intended for use as tobacco–very clearly there are things that are drug paraphernalia that are included there. When you have a gas mask, that looks like a World War II gas mask with a long bong pipe sticking out, that’s not a typical tobacco pipe. Those items were for sale at the facility that we are talking about…
There are a lot of subtleties and nuances when looking at this. But I think when we are looking at this, let’s be clear, somethings are drug paraphernalia. Most people would conclude that these are drug paraphernalia whether we want to get into the mess of determining which ones are or not is another question.
I personally am interested in the condition use permit approach because we’ve seen a business that has moved from a fairly unobtrusive location in a little… but it’s not a visible spot and now it’s in one of the most visible locations in our downtown core. I think that’s it’s worth commenting on that, it’s worth thinking about how do we want our community to appear. How do we really want to strengthen our downtown merchants? Do we want our businesses to survive and thrive? I think that’s probably not the best location for this particular business. That’s my judgment. That’s my subjective assessment.”
Councilmember Saylor wanted to look into an ordinance around a conditional use permit to deal with this issue. He put it forward as motion, Mayor Ruth Asmundson seconded it.
However Councilmember Stephen Souza was firm:
“I’m personally not interested in wasting any of our time on this. I do not want to interject my morals into the individual legal rights of others when their purchasing behavior is not affecting my health or the health of others in our community.”
He went on to speak passionately and eloquently about medical marijuana, which is legal in the state of California.
As a result of Councilmember Souza’s impassioned plea, the council backed off the motion. Sensing that he was outnumbered, the Mayor Pro Tem withdrew the motion.
From my perspective the Council was wise to back off this ordinance. I agree with Councilmember Souza this is a waste of time. There are legitimate and legal uses for much of what is sold there. It is not the business of the council to determine how those items should be used. We have existing laws already on the books prohibiting individuals for using those items for illegal purposes. But let’s not pretend that we can stop illegal uses by preventing people from buying those products.
Most college towns have such shops. A lot of those items that the Mayor Pro Tem describes have legitimate purposes. A Hooka Pipe is generally used for tobacco in fact.
If I had my choice, I would probably prefer a different business in that Second and G location. I think there is some gamesmanship going on there with the building owner Jim Kidd, who has repeatedly attempted to try to petition council to lower the windows of the Anderson Bank Building. So now he has finally found a use for that building where the window issue is actually preferable.
It is noteworthy that the Mayor Pro Tem reportedly requested the shop merchants to turn a Marilyn Monroe poster in the windows inward because he found it personally distasteful. It is this level of interference with the running of legitimate business I find distressing.
As Councilmember Souza pointed out, if we want to do something that is going to make a difference in our community, go after the use of alcohol which is legal but a far greater nuisance and tax on our police and other services on the weekends.
Many object to the Davis City Council interjecting themselves into national and international policy by making resolutions. They see that as the Davis City Council trying to conduct foreign policy. I see as the City Council representing the views of its citizens as they petition government–which is a very legitimate function of local government as it represents the closest link between the people and government.
This however is much more destructive. We have laws on the books that prevent illegal uses of such items. As the Police Chief said, we simply do not have the resources to worry about such things and frankly it is not going to stop people from using drugs. It just isn’t. Much of that paraphernalia that the Mayor Pro Tem seemed so concerned about is more of trinket that something that is functional. It doesn’t take much to create a functional pipe if the intent is to smoke marijuana or other drugs.
The council was wise to let this issue drop and move on to more pressing concerns for this community.
—David M. Greenwald reporting