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Lawsuit filed over Duluth's synthetic pot ban

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  1. Terrapinzflyer
    Prevented by city ordinance from selling fake pot, the Last Place on Earth could go out of business within a few weeks, its owner says in an affidavit filed in U.S. District Court.

    Jim Carlson, owner of the 29-year-old downtown Duluth business, filed a lawsuit on Monday seeking to overturn an ordinance the Duluth City Council passed Aug. 30 that banned sale or use of “synthetic cannabinoids” — products commonly known by names such as K2, Spice and Mojo.

    Although marketed as incense, the products typically are smoked and are said to provide marijuana-like effects.

    The ordinance, which was the first of its kind in Minnesota, took effect on Sunday. Carlson claims he will lose 50 percent of his business because of the local ban, and he’s seeking a temporary restraining order to prevent its enforcement while the case works through the courts.

    Meanwhile, Carlson said, he has stopped selling the banned product.

    Alison Lutterman, assistant attorney for Duluth, said the city hadn’t been served with the lawsuit as of Tuesday afternoon and would not comment on pending litigation.

    Carlson’s lead attorney, Randall Tigue of Golden Valley, Minn., wouldn’t speculate on when any initial action might take place. “I think we have a strong case on the merits, and I think Mr. Carlson’s going to suffer irreparable injury unless there’s injunctive relief issued,” he said.

    How could a longtime business be so dependent on a product most people hadn’t heard of until a few months ago?

    “There are not many businesses in the world that can take a 50 percent loss of income and survive,” Tigue said. “He’s been in business for a long time, but we’re in a recession, and the nature of the business and the demand for his products has changed over the years. And he’s now pretty reliant on the products that are prohibited by this ordinance.”

    Carlson’s wholesaler had sold $173,000 of synthetic marijuana to the Last Place on Earth in six months, Tigue said. Although the lawsuit doesn’t ask for a specific dollar amount from the city, damages will mount quickly as long as the store is prevented from selling the product, he said.

    Hundreds of stores in Minnesota sell synthetic marijuana, Carlson said. That includes several other stores in Duluth, he said, although no other store would join him in the lawsuit.

    The lawsuit claims the ordinance is unconstitutionally vague because the ingredients it cites are contained in many other products, such as hemp clothing, most nasal sprays and Vicks VapoRub. That encourages “arbitrary and capricious enforcement,” Tigue said.

    “If the city gets up and says we won’t enforce it against Vicks VapoRub and Dristan nasal spray, but we will enforce it against the stuff Mr. Carlson sells, well, what’s the difference?”

    City Councilor Todd Fedora, who sponsored the ordinance, said the Vicks VapoRub comparison “is hard for me to believe.”

    “The city isn’t the first community to ban K2 and we’re certainly not going to be the last,” Fedora said.

    The lawsuit also disputes the claim that synthetic marijuana presents a health risk. Those allegations are “essentially urban legend,” Tigue said.

    Tigue has a reputation for taking on government bodies on behalf of unpopular clients. In the Northland, his clients have included the NorShor Experience strip club, Yoshiko Sauna, Sugar Daddys in Scanlon and Pure Pleasure in Hermantown.

    Tigue took this case, he said, because he has represented Carlson for years. “And this is just the kind of stupid thing that municipalities do that I love to go after in court,” he said.

    The case was assigned to Judge Richard Kyle, and all proceedings will take place in federal court in Duluth, Tigue said. He’s joined in the case by Marc Kurzman, a Minneapolis attorney with a background in pharmacology.


    By: John Lundy
    Duluth News Tribune

    http://www.duluthnewstribune.com/event/article/id/180536/publisher_ID/36/

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  1. Terrapinzflyer
    from the Duluth City Council bill:
    Full pdf attached
  2. Terrapinzflyer
    Duluth shop says it has OK to sell synthetic marijuana
    The store started selling the products, which are sold as incense, on Wednesday evening after an attorney for the city of Duluth reportedly agreed not to enforce the city’s new ordinance — at least temporarily.

    The Last Place on Earth is back to selling synthetic marijuana in Duluth, just a few days after a city ordinance went into effect banning it.

    The store started selling the products, which are sold as incense, on Wednesday evening after an attorney for the city of Duluth reportedly agreed not to enforce the city’s new ordinance — at least temporarily.

    “The city has sent us a proposed stipulation that the city would agree not to enforce the ordinance and that the agreement ends upon final judgment of the lawsuit,” said Randall Tigue, lead attorney for Jim Carlson, owner of Last Place on Earth.

    City attorneys did not return calls seeking confirmation after office hours Wednesday.

    Carlson’s attorneys filed a 48-page lawsuit Monday seeking to overturn the ordinance that the Duluth City Council passed on Aug. 30 banning the sale or use of “synthetic cannabinoids” — products known by names such as K2, Spice and Mojo.

    Although marketed as incense, the products typically are smoked and are said to provide marijuana-like effects.

    In the lawsuit, Carlson had additionally asked for a temporary restraining order to prevent its enforcement while the case is ongoing.

    Because of the city’s offer, Carlson will rescind that request, Tigue said.

    “That was good for us,” Carlson said of the temporary lift on the ban without a court hearing. “Usually it takes about six months to go to court. This will also save us money and we can sell it now.”

    Carlson said he wasted no time putting synthetic pot products back on the shelves.

    “We put it back about a minute after hearing the news,” he said.

    People had been calling the store all day wondering if it was for sale again, Carlson said. Sales Wednesday night were brisk, he added.

    Carlson claims in the lawsuit that he will lose 50 percent of his business if the ban is enacted. It also calls the ordinance unconstitutionally vague because the ingredients it cites are contained in many other products including hemp clothing, cold medicine and nasal sprays.

    A discrimination lawsuit could be pending based on the fact that the ordinance wouldn’t be enforced on businesses selling those items, according to Carlson.

    “The ordinance is so vague,” he said. “So the Declaration of Independence couldn’t come to Duluth because it’s on hemp paper.”

    The lawsuit also disputes the claim that synthetic marijuana is harmful to one’s health, although critics say it can cause irrational or dangerous behavior and health risks.


    October 06, 2010
    By: Lisa Baumann
    Duluth News Tribune
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