, Newburyport, MA

January 25, 2014

Judge dismisses smoke shop complaint


---- — SEABROOK — A Superior Court judge has thrown out a lawsuit launched by a local business owner who attempted to block a town ordinance intended to stop the distribution of fake marijuana products in Seabrook.

On Jan. 21, Rockingham County Superior Court Presiding Justice N. William Delker handed down his ruling, dismissing the complaint lodged against the town by William Walsh, owner of the Smoking Monkey and co-owner of Smokers City. The suit asked the court declare Seabrook’s synthetic cannabinoid ordinance “null, void and unenforceable” on state owned roads as it pertained to his businesses, and to prevent police from enforcing the ordinance against his customers.

In his ruling, Delker wrote that Walsh’s complaint included issues that “. . . are so vague, prospective and indefinite, that as to present the court with no judicial standards on which a decision could be based.”

Walsh’s legal complaint was filed with the court on Nov. 7, a month after selectmen approved a town ordinance making unlawful on Seabrook roads, sidewalks or town property, the transport, use or possession of synthetic cannabinoids, known as fake weed on the street, or their derivatives, such as salts or isomers.

The unique town ordinance was unanimously approved by the Board of Selectmen after dozens of residents pleaded with them to act, claiming synthetic cannabinoids, although legally sold as incense, are addictive when smoked and have ruined lives.

Most popular among 12- to 17-year-olds, synthetic cannabinoid is supposedly pleasant-smelling herbal incense, but when smoked, it produces an addictive high many believe is more dangerous than marijuana due to the chemicals that are inhaled. Originally sold under names such as K-2 or Spice, which were since banned, other brands have taken their place. And according to many who testified at the selectmen’s meeting, both the Smoking Monkey and Smokers City, sell these incense products.

Although the federal Drug Enforcement Agency has repeatedly banned several of the substances sprayed on the herbs, as soon as one chemical is barred, others are introduced. Packages of synthetic cannabinoids are stamped “not for human consumption,” a technicality making it very difficult to ban and control the product, even though most who buy the substance do so to smoke it, Seabrook Sgt. Brett Walker has said.

According to Delker’s ruling, in the complaint, Walsh asserts that his store sells, “incense products,” which “some town citizens think contain synthetic cannabis,” and which has “engendered some hostility in the community.” Delker wrote that Walsh said one of his customers been arrested, had his vehicle towed and was charged with violating the ordinance “based upon what he had purchased from my store.”

The next day, Walsh said in the complaint, the same customer was arrested again for violating the ordinance, Delker wrote.

“Several other customers have been arrested for products purchased from (Walsh),” Delker wrote. “Since passage of the ordinance, ‘that portion of (Walsh’s) businesses is down 50 to 60 percent.’ “

According to Delker, the crux of the lawsuit’s argument wasn’t that Seabrook’s ordinance was unlawful or invalid, but that it shouldn’t apply to Walsh’s businesses because he didn’t sell any products that contain the 13 prohibited compounds on the ordinance list, and that the Smoking Monkey and Smokers City are located in parking lots off of Route 1, technically a state road.

“Neither the complaint nor the affidavits of William Walsh allege that the petitioners are not selling any substances that fall within the definition of the ordinance,” Delker wrote. “For example, the petitioners have not alleged that their products do not contain salts, isomers, or salts of isomers of any compound in any of the prohibited classes — they merely allege that the products test negative for the 13 enumerated compounds.”

In addition, Delker wrote, the petition to prevent the police from investigating potential violations of the ordinance would be contrary to the public interest.

And while the complaint states both the Smoking Monkey and Smoker City are located adjacent to the state highway and not Seabrook owned property, Delker wrote, the petition didn’t develop any legal arguments as to why the ordinance wouldn’t be enforceable on state roads. As a result, Delker didn’t consider the argument.

This isn’t the first attempt the owners of the two stores tried to silence the controversy concerning fake weed.

About a month after the debate on fake weed took place at a Sept. 9 selectmen’s meeting, on behalf of his clients the Smokers City and Smoking Monkey, attorney Richard Foley emailed Town Manager Bill Manzi strongly urging the town to stop rebroadcasting the meeting on its cable access channel and threatening to sue if the town didn’t comply.

Foley added that if the town did not comply with his request, he wanted the name of the town’s attorney, for he would “be immediately seeking an injunction and damages in the Rockingham Superior Court.”

The town continued its usual replay schedule of the meeting, Manzi said, and town counsel informed Foley he had no legal standing to make the demand or seek or get an injunction.

In October, on behalf of the two smoke shops, Foley brought suit against resident Tammy Calabrases, claiming she defamed the businesses at the selectmen’s meeting. In late November, a Rockingham Superior Court judge denied to issue a gag order the suit requested against Calabrase.