Pubdate: Wed, 08 Feb 2006
Source: Hanover Mariner (MA)
Contact:   http://www.townonline.com/hanover/news.html
Address: 165 Enterprise Drive, Marshfield, MA 02050
Copyright: 2006 Hanover Mariner
Author: Paula  Woodhull
Bookmark: http://www.mapinc.org/find?228 (Paraphernalia)

PEMBROKE TOBACCO SHOP OWNER WINS LATEST ROUND

A Pembroke tobacco shop, under fire for selling what police regard as 
drug paraphernalia, has been handed a favorable court ruling. Karen 
Brennan  Fontana, owner of Brennan's Smoke Shop on Church Street, 
said Pembroke police  "picked the wrong shop" to target in enforcing 
the state's drug paraphernalia  law.

"This is my  livelihood, and I'm not doing anything wrong," said 
Fontana. "They're portraying  me as a head shop, and I am not. I'm a 
legitimate smoke shop." She added, "I'm  not going anywhere."

On Jan. 30, an  assistant clerk magistrate in Plymouth District court 
ruled that Pembroke police  had not met the criteria for establishing 
that the smoke shop was in violation  of the 1998 drug paraphernalia 
law when items were seized in a police raid three  months ago.

Responding to a  complaint, Pembroke police obtained a search warrant 
and raided the smoke shop  on Nov. 16, on the grounds that Fontana's 
store was allegedly in violation of  the drug paraphernalia law. The 
law forbids a business from pedaling products  that are likely to be 
used for the consumption of an illegal drug, such as  marijuana.

Police confiscated what Fontana said was $20,000 worth of scales, 
water pipes and other items. In denying the  Pembroke police 
department's request to go forward with a formal complaint  against 
Brennan's, Asst. Clerk Magistrate Lucy Canavan stated, "I don't 
know  whether the Pembroke Police Department is collectively aware of 
specific  instances of any type of pipes being sold at Brennan's and 
then used to smoke  marijuana. If it had any such evidence, it was 
not presented at the hearing. On  the contrary, Ms. Fontana's 
testimony and photographs indicate that people under  18 are not even 
allowed in the store, and that all of her inventory is sold for  use 
with tobacco products."

Authorities will  reportedly appeal the ruling. Fontana said the 
store in no way promotes the use of the products sold there for drug 
use and  does not advertise in that context. "We don't cater to the 
drug trade."

Authorities have  said it's disingenuous for storeowners to insist 
water pipes and other items are  being used primarily for smoking 
tobacco. Fontana's  attorney, Ron Whitney of Whitman, said this is 
part of a longer battle. "We're  going to pursue a defense. It's 
unfortunate the town of Pembroke has gone  forward with an appeal." 
He said Fontana "is running a legitimate smoke shop."

Items seized in  the raid may remain in police custody during the 
appeal period. Fontana said that  while she could technically put 
similar items back on the shelves, she will not  do so until the 
entire matter is resolved on appeal. She said she wants the 
confiscated items returned.

Whitney said he  sympathizes with Plymouth County District Attorney 
Timothy Cruz's efforts to  fight drugs. "We certainly appreciate the 
efforts of the DA to solve the drug  problem, but this is a case 
that's outside the box." In December, Cruz  met with Pembroke 
selectmen, urging stricter enforcement of the drug  paraphernalia 
law. Selectmen agreed that storeowners would be warned of the drug 
paraphernalia law when their licenses came up for renewal and that 
the town will  enforce compliance.

Cruz told  selectmen during the meeting that he believes the state's 
drug paraphernalia law  is constitutional. It was signed into law in 
1998 by Gov. Paul Cellucci. In explaining the  position of the 
District Attorney's office on drug paraphernalia, Cruz told 
selectmen, "There are certain things, like pipes, that people selling 
them  should know what they're selling them for. If they're selling a 
scale in a smoke  shop, it's different than if it's in a 
pharmaceutical company." He added, "I'm  willing to prosecute if 
they're buying these items to be used illegally. The law  is what it 
is, and it's my job to enforce it." Meanwhile, in  Hanover, the 
Plymouth County District Attorney's office has dropped charges 
against two employees of Spencer's Gifts in the Hanover Mall. In 
January the  employees were charged with violating the drug 
paraphernalia law by selling  water pipes. In the plea agreement, 
Spencer's agreed to stop selling water pipes  at the mall in exchange 
for no charges being brought against the employees.
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MAP posted-by: Beth Wehrman