Mansfield effort to restrict K2 raises legal questions

MANSFIELD -- While Mansfield is taking steps to restrict the sale of K2 and related paraphernalia, the city attorney is struggling to determine exactly how far the city can go in enforcing the new ordinance.

Police Chief Gary Fowler says the ordinance restricting K2 -- apparently the first in Texas -- gives him the authority to ban items like water pipes and bongs within 1,000 feet of a school, church, day-care center, park or library.

"I am confident that the City Council has interpreted, intended and said that their desire by that ordinance is to prohibit the display and sale of those items in that ordinance within the 1,000-foot boundary," Fowler said.

Andies Shepherd disagrees. As owner of the soon-to-open Marley'z hookah lounge, which is within walking distance of several schools, he said all of his merchandise will be intended for use with legal substances.

"I am still able to sell hookahs and tobacco pipes because they are tobacco pipes, not paraphernalia," said Shepherd, whose store spurred residents to ask the City Council to adopt the new ordinance in late June.

"You can't just say that it's for illegal substances unless there is evidence to say that," he said. "You can't assume something because it suits what you want to do."

Different interpretations

Under the new rules the sale and possession of K2 -- which is said to produce marijuanalike effects -- and similar substances will be restricted to adults 21 and older.

Also, the restricted smoking materials and related paraphernalia cannot be sold, possessed or delivered within 1,000 feet of certain places. Violators will face a Class C misdemeanor charge and up to a $2,000 fine.

The ordinance states that "any paraphernalia, equipment or utensil that is used or intended to be used in ingesting or inhaling illegal smoking materials" shall be illegal within the 1,000-foot buffer zone. It also lists items that fit that description, including water pipes, chamber pipes, bongs and more.

City Attorney Allen Taylor said he will need the council to clarify its intentions with the ordinance before it can be enforced, because the paraphernalia section can be interpreted two ways.

The first implies that paraphernalia is illegal if it is used or intended to be used for the ingestion of illegal smoking materials.

The second interpretation implies that paraphernalia is illegal if it is commonly used for ingesting restricted smoking materials.

If the intent was to completely prohibit the paraphernalia items listed in the ordinance in the 1,000-foot radius, documentation will have to be provided that clearly suggests the devices banned are "commonly or traditionally used more often in our area for illegal [substances] than for legal," Taylor said.

And the research has to be conclusive and have the strength to be upheld in court.

"I'm the one who has to represent in court that we reasonably believe this to be true," Taylor said.

Clear intentions

Mayor David Cook said he is clear on what his intentions were when approving the ordinance and, if necessary, he will make them clear again at the next council meeting, scheduled for Monday, the same day the ordinance is set to go into effect.

He declined to explain what his intentions were before then.

Shepherd said he will be watching closely to see how the ordinance will be enforced. If he cannot display or sell hookahs at his lounge, "then they railroaded my business, mid-process," he said.

Pastor Michael Evans, a school board member who rallied the community to oppose Marley'z, said he and his peers saw a complete ban of the paraphernalia in the 1,000-foot zone.

"The key is to keep this stuff away from our babies, our children, our most precious commodities," Evans said.

With the passing of the ordinance, protests have ended, but Evans said another rally will be held at 7 tonight at the Walnut Creek Church of God, 200 Newt Patterson Road.