Council Backs Off New Tobacco Ordinance

When a business that sells among other things, tobacco related paraphernalia moved to the prominent location at Second and G in the corner space of the Anderson Bank building some members of the council responded by considering an urgency ordinance to create a conditional use permit prohibiting such businesses from that location.  However, it became clear that this would not affect the current occupant who moved to the new location in an expedited manner.

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


About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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15 thoughts on “Council Backs Off New Tobacco Ordinance”

  1. Mary M Zhu

    There are so many issues involved in a downtown business selling tobacco and alleged drug paraphernalia. I’ll leave city ordinances and law enforcement to others with interest and expertise in legal issues. There are certainly public health/medical issues in the selling and use of tobacco and the alleged drug paraphernalia. One this issue, one can debate where to draw the line between being a health vigilante and allowing unrestricted advertising of harmful and addictive substances,knowing that such ads are pitched to children. The issue that I am unambiguous about is whether these shops attract a substance using population that “hangs out” on downtown streets. I’m noticing more people squatting/living on the E Street. Were there so many ten years ago? Does this population have housing/food problems that the city can address? Are they latter day flower children who are there by choice? Whatever the answers are to these questions, I’m certain “stree people” do not add to the quality of life in Davis.

    Davis has always attracted me as similar to Berkeley in temperament but not filthy. Here I’m thinking of Telegraph Avenue. For those too young to have been in Berkeley before the 60’s,Telegraph Avenue was a very pleasant street with some five or six wonderful book stores within a half mile walk down the street, espresso houses, restaurants and great shops. It’s services catered to students and Berkeley residents. By the l980’s, Cody’s Books was severely criticized for complaining that customers objected to stepping around human excrement in front of the store. This book store closed as well as most of the other shops. Today, there are drug paraphernalia stores up and down both sides of the street and tourists come to gawk at the weirdness and to “act out.” This street no longer provides services for local residents, who seem to have abandoned it. That’s sad.

  2. Rick Entrikin

    Talk about a non-issue! And did Don Saylor really object to a frontal view poster of Marilyn Monroe (clothed, I assume) being visible to downtown shoppers & visitors? What’s next, hiring Jerry Falwell as a $100K City consultant to pass judgement on merchants’ window displays?

    As Bernie Taupin wrote, and Elton John sang in tribute, “Goodbye, Norma Jean, Though I never knew you at all, You had the grace to hold yourself While those around you crawled.”

    “And it seems to me, you lived your life like a candle in the wind, Never knowing who to cling to when the rain set in. And I would have liked to have known you, but I was just a kid. Your candle burned out long before your legeng ever did.”

  3. No To Drugs

    Do we really want a drug paraphenalia shop as a downtown business? I think not. What kind of message does that send to our teenage kids? Sorry, but I would go farther than Don Saylor on this one. We’ve seen what happens when the City Council isn’t watching – massage parlors w prostitutes. That sends the wrong message too.

    Believe me, I am not a Don Saylor fan – can’t stand the man. But I don’t want a drug paraphanalia shop downtown period. Clothing it in another name doesn’t change what it is. I realize the current business is already here, so we can’t kick them out after the fact. But we can limit them in any way possible w a conditional use permit so they are not front and center for all our kids to see, as if we approve of this sort of thing.

  4. Rich Rifkin

    [i]”Do we really want a drug [b]paraphenalia[/b] shop as a downtown business? … I don’t want a drug [b]paraphanalia[/b] shop downtown period.”[/i]

    For the record, the correct spelling is [b]paraphernalia[/b]. It’s pronounced PEAR-uh-fer-NAIL-ya and it has an interesting history, related to female property.

    In Ancient Rome, paraphernalia was the exclusive stuff of a married lady, such as her clothes, shoes and jewelry, but didn’t count anything in her dower. Dower should not be confused with dowry. A dower was the portion of a man’s property allotted to his widow for her lifetime after his death. In a sense, in olden days a dower was a widow’s life insurance policy on her husband. However, even if these items were promised to his wife, he could sell them before he died, but he couldn’t touch her paraphernalia without her permission. A dowry, meanwhile is the money, goods, or estate that a wife brings to her husband at marriage. In olden times, whatever she brought in (save her personal items) was HIS property. A woman back then had the right to put will her paraphernalia to her chosen heirs, but she normally could not pass on items or property in her dower. Her husband’s will would have decided who got what after her death.

    The legal concept of paraphernalia was Roman, but the word itself was from Greek: [i]para[/i] (“beyond”) + [i]phernē[/i] (“the dower”).

    In time, paraphernalia came to mean “personal belongings.” From there, it branched out to mean “personal equipment” and then, as it is mostly used now, any “apparatus or equipment, usually employed for a narrow activity.”

    Learn more about words at: [url][/url]

  5. Rich Rifkin

    A woman back then had the right to [s]put[/s] will her paraphernalia to her chosen heirs, but she normally could not pass on items or property in her dower.

  6. wu ming

    funny, downtown davis seems to manage with shops selling caffeine, alcohol and tobacco and related paraphernalia without causing the downfall of western civilization. all of them addictive mind-altering drugs that happen to be legal and thus socially acceptable by upright citizens and scolds such as mayor saylor. all health problems, social problems relating to said addictive but legal drugs are totally beside the point, because respectable citizens do them without fear of arrest.

    yet the very possibility that someone may use a water pipe to smoke a non-addictive, rather benign substance that is smoked by the wrong people and thus illegal, instead of the legal but addictive and far more unhealthy tobacco, gets everyone in a tizzy. o noes, people in davis may consume a drug that makes them giggle uncontrollably.

    nah, people would rather keep “those people” out of town, but can’t legally do so (same with the supporters of the drinking ordinance a couple years back, who fretted about how to write a law that let middle aged yuppies consume alcohol in public, but not students), so they try to nitpick around the margins.

    and that’s not even getting into the issue of the legal use of marijuana as medicine, established state law and passed in this community by a healthy margin IIRC. let’s not let them use water pipes that cool the smoke to more comfortable temperatures.

    tom ammiano is right, we should just legalize this stuff, pocket the tax revenues and savings from fighting this ridiculous war against victimless crimes, and remove an excuse for narrow minded busybodies to harass people not like them. if antisocial behavior is a problem, then deal with antisocial behavior, same as with alcohol and perfectly sober people being disruptive and criminal.

  7. Rich Rifkin

    [i]”tom ammiano is right, we should just legalize this stuff, pocket the tax revenues and savings from fighting this ridiculous war against victimless crimes, and remove an excuse for narrow minded busybodies to harass people not like them.”[/i]

    My view is that we shouldn’t have “open markets” for things like pot or whores or cocaine. Instead, we would be better served to regulate these “vices” in red-light districts, away from ordinary commerce and certainly away from residential neighborhoods. With reasonable levels of regulation, these products and services could be bought and sold more safely, resulting in far less societal damage.

    The worst of all worlds is how we address these “problems” — prohibition. It doesn’t make any of them go away. Instead, it drives them underground, creates black markets and corruption, spreads disease, often results in violence, and consumes huge amounts of resources in law enforcement and incarceration. Our prisons would be far less populated if street drugs were not so profitable to the gangs that traffic in them.

    I don’t think it would solve the state government’s fiscal problems to tax and regulate the sales of drugs like pot, heroin and cocaine. However, it wouldn’t hurt. And if casino gambling and sports betting in California were legalized and regulated, the problems in Sacramento, right now, would be somewhat less bad.

  8. Cheezburgers

    It is very weird what Don Saylor chooses to feel “passionate” about lately. He wants to interfere with the business of a tobacco shop, that isn’t doing anything illegal. And he wants exceptions to the noise ordinance for really loud daycare centers because who could object to the sound of happy children playing. He makes no sense.

  9. Against Legalization

    “I don’t think it would solve the state government’s fiscal problems to tax and regulate the sales of drugs like pot, heroin and cocaine. However, it wouldn’t hurt. And if casino gambling and sports betting in California were legalized and regulated, the problems in Sacramento, right now, would be somewhat less bad.”

    Countries that have legalized drugs have found it to be disasterous. Casino gambling on reservations has spawned its own set of problems. Legalization is not a panecea either.

  10. Oh Brother!

    “For the record, the correct spelling is paraphernalia. It’s pronounced PEAR-uh-fer-NAIL-ya and it has an interesting history, related to female property.”

    Do we really care? The day you are perfect is the day you can correct everyone else…

  11. Rich Rifkin

    [i]”Countries that have legalized drugs have found it to be [b]disastrous[/b]. Casino gambling on reservations has spawned its own set of problems. Legalization is not a [b]panacea[/b] either.”[/i]

    Even the most zealous advocates for prohibition cannot point to any problems in a completely unregulated drug market which compare with those of prohibition. If you don’t believe me, I suggest you go on your next vacation to Juarez, Mexico, Cali, Colombia or Kandahar, Afghanistan. If you’re too afraid of those symbols of your “war on drugs”, try Del Paso Heights, where the illegal trade in drugs is rampant.

    I am not calling for open-market “legalization” of drugs or other vices. I suggest regulation in contained spaces.

    You cannot name a single country which has had disastrous effect from such a policy, as, alas, there is not a single country in the world today which has a sensible regulation of “street drugs.” Some have had a look-the-other-way approach – as the Netherlands has had with marijuana and hashish. However, the vices it was looking the other way on remained illegal, and there remained some (but fewer than we have) problems with the black market effects of that illegalization. Other countries, such as Switzerland, have done similar things with heroin, again not regulating the industry, but setting aside small zones where their laws on the books are not enforced. That is not what I suggest. And based on the small sample of experiences in Europe, I believe it is clear that when prohibition is not enforced in a few places, but remains everywhere else, you get problems of concentration – where addicts all flock to those safe zones, and bring with them their sui generis problems. As such, it makes no sense for a local community in the U.S., or even a single small state, to tackle this issue. It needs to be done in scale to avoid concentration effects.

    As far as legal gambling goes, I never said it does not bring about some problems. The question is: how do they compare with those of prohibition? You would have to be ignorant of history to not know that the problems are far worse when you outlaw gambling. People love to gamble. They always have. They do so whether you regulate the industry or not. I read recently that $100 billion in illegal bets were made on the last Super Bowl. A lot of that is handled by the mafia, only because morons outside of Nevada have “prohibited” such betting. If you want to empower the Al Capones and Bugsy Segals and Tony Montañas, then keep sports betting illegal.

    [i]”Do we really care? The day you are perfect is the day you can correct everyone else…”[/i]

    I didn’t make that correction to suggest I am perfect. I perhaps overestimated your interest in learning. I like to be corrected when I am wrong. That is how I learn. You might simply be too closed-minded to appreciate erudition.

  12. Wondering

    Excuse me Rich, but do you want someone with a load of legalized drugs in their system teaching your kids, driving on the roads, dispensing your medication, doing surgery on you? Why make that possibility easier? Your logic escapes me.

    “You would have to be ignorant of history to not know that the problems are far worse when you outlaw gambling. People love to gamble. They always have.”

    Some people love to murder people, but does that mean we should legalize murder? Some states are rethinking their lotteries, bc it is feeding the unhealthy gambling habits of those who cannot afford it. Even casinos on reservations cause all sorts of problems in the surrounding areas, where the casinos do not pay their fair share of mitigation damages. Often heads of tribes rake off the largesse so it doesn’t get to lowlier tribe members.

    Sorry, but legalizing bad habits is not a panacea for the ills of drugs or gambling.

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