05/09/1988 Meeting (2) - Laserfiche WebLink

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e e e Paul Ferter, Salem, Oregon, said he was an attorney representing Mr. Hal Eisenberg and wished to speak to the constitutionality of the ordinance. He said there is a drug problem; the question is, how should it be approached. Mr. Ferter said he had a client in Bend who asked him to review the Bend ordinance. Mr. Ferter concluded that the ordinance was probably unconstitu- tional, but it would cost money to fight the ordinance. As a result, the client decided it would be more cost-effective to move three blocks outside of the city of Bend. He said that most of the shops in Bend had been scat- tered to the outskirts of town and the ordinance had no actual effect. Mr. Ferter discussed the definition of drug paraphernalia, which is from the endangering the welfare of a minor statute. He said the statute has never been tested because it is not discriminately applied, but rather uniformly enforced against each member of the class it is directed against. Mr. Ferter said the ordinance under consideration would require a police officer to make an independent determination regarding ordinance enforcement. The enforce- ment effort will not be directed against large retailers, such as Fred Meyer, but rather toward small IIheadll shops in the community. Mr. Ferter predicted that the ordinance will be appealed to the Supreme Court until such time as a State law is passed. Mr. Ferter said selective enforcement will generate liability for the City. Mr. Ferter encouraged the council to wait for devel- opment of the State statute. He said that he had been consulted by almost all of the small communities regarding forfeiture ordinances being enacted because he has defeated about half of them. Hal Eisenberg, 1738 White Oak Drive, said he was a novelty and gift distribu- tor. He sells music, television, and movie personality posters, buttons, gifts, pipes, lighters, and tobacco and snuff accessories to gift shops, import stores, pipe and tobacco shops, record stores, department stores, and some of the stores that would be regulated by the ordinance. He is a 12-year Eugene resident and has been in business since 1972. He said that he assumed this ordinance would affect him indirectly through the targeted stores. Mr. Eisenberg said that a State ordinance already exists governing the sale of paraphernalia to minors. Additionally, Oregon has not declared any smoking articles illegal to adults. Stores enforce the minors' act by posting signs and checking identification. Such stores as Mr. Smalley's store are com- pletely enclosed and have no showcases on the outside. Mr. Eisenberg said that no arrests have been made under the existing statutes, which means either than every store in the state is adhering to the law or it is not being enforced. If the law is not being enforced, Mr. Eisenberg did not see the purpose of adding more laws. Mr. Eisenberg said the real problem with the proposed ordinance was post-en- forcement challenges. He said it had been determined unconstitutional na- tionwide to determine intent of retailers and customers. Selective enforce- ment could result in large costs to the City in the form of attorneys' fee. Mr. Eisenberg discussed a San Jose, California case where goods where seized and accidentally destroyed before trial; the retailer filed a $400,000 damage claim which he expects to collect; meanwhile, retroactive to seizure, the retailer is receiving ten percent interest until fees have been determined. MINUTES--Eugene City Council May 9, 1988 Page 9