By Norman Kent, CounterPunch
January 5, 2009.
How a reckless mayor, heartless federal agents and a disorganized
drug-consuming public led to a pointless raid on head shops.
Duval Street is the epicenter of Key West, Fla., home to Sloppy
Joe's, Ernest Hemingway's and a host of bars and hotels that have for
a century captured the spark and soul of this land of the lost.
The Environmental Circus is gone, Valladares' News Stand is history,
and though La Te Da still stands, Larry Formica and his pink Cadillac
have long since passed. Where a beat up wooden dock and a collage of
cultures once gathered on historic Mallory Square, cruise ships now
pour out thousands of tourists in flowered shirts onto the city's main streets.
Fantasy Fest still wreaks havoc to the city every fall, but the
pirate image of this out-of-the-way city has been lost for a long
time now, to T-shirt shops and condos; to name hotels and tourist
traps. The epicenter of the city, Duval Street, has seen some of its
landmarks become chain pharmacies, and cheap coffee shops like
Shorty's and Dennis Pharmacy have become convenience stores.
Walking down Duval Street in 2008, you are more likely to find a
foreign exchange student from Slovakia peddling a bike for extra cash
than you are to stumble upon a runaway teen from New York hustling a
street corner for change. The times they are no longer a-changing.
The times they have changed.
The temperature on Oct. 17, 2008 in Key West was its typical tropical
75 degrees. Ladies were sunning themselves bare-breasted at the Pier
House's private beach. Fishermen were working the pier, vacationers
on mopeds crisscrossed the narrow streets and more than one drunk
stumbled down an alleyway. After all, it is still Key West.
But the heat on Duval Street was about to get hotter.
The shops on Duval Street opened their doors as usual, with no
threats of a hurricane brewing. Merchants, if anything, were readying
themselves for the annual, sin-filled festival of self-ordained
decadence, Key West Fantasy Fest. On that date, many of them, head
shops, were selling rolling papers, glass pipes, bongs and other
products designed to enhance the right of happiness, a constitutional
right not too often protected by our courts.
The stores had signs all over them saying the products are for 'legal
and tobacco use only.' But this distressed the new mayor, concerned
that his little town was sending the wrong message: "You know that
you don't really smoke tobacco out of those things." He sounded like
Sarah Palin telling us how you could see Russia "from my house here in Alaska."
The misguided mayor of this island city disapproved of the displays
and set to do something about it. So he called the feds. You see,
under broad Florida laws, those pipes are legal. Not so under federal
law. Understandably, this confuses the average citizen. Heck, it
confuses lawyers, too.
Title 21, Chapter 13 of federal law states: "Drug paraphernalia means
any equipment, product or material of any kind which is primarily
intended or designed for use in manufacturing, compounding,
converting, concealing, producing, processing, preparing, injecting,
ingesting, inhaling or otherwise introducing into the human body a
controlled substance ..."
Supported by the local district attorney, the mayor found his answer.
On this quiet morning in October, federal authorities from 16
agencies, aided by local and state operatives, converged on Duval
Street and the neighboring streets where head shops dispensed their
products lawfully, or so they thought.
Store by store, law enforcement entered with badges and guns,
uniforms and crates -- that's right, crates -- to confiscate and cart
away the inventory of these stores to the waiting rental truck
conspicuously parked in the center of the street.
Systematically, the feds sucked up any items they deemed as
contraband that they say could be used to violate Title 21. The items
taken were rolling papers, lighters, ashtrays, bongs, catalogues,
pipes and anything they say could potentially be used to violate the
law. There was no order or determination of probable cause by a
jurist, no ruling by a court that the items were illegal, just law
enforcement officers with cartons and guns.
Furthering their operation, these officers then seized all the
financial records of the stores, including their receipts and credit
card purchases. That means if you have visited Key West lately and
you purchased one of those glass pipes, the feds now know where you
live, too. Your credit card number is now sitting in a federal
database as a drug paraphernalia consumer. No, there was no judicial
hearing on that either.
As a matter of fact, no one was charged with a crime, but the feds
carted off 11,920 items defined as drug paraphernalia under the
federal law, with an estimated value of three-quarters of one million
dollars. Not a bad haul for one sleepy, sunny morning in Key West.
Since the raids, at least two stores have summarily closed their
doors, their inventory entirely depleted. Abby Frew, the owner of a
shop called Energy, said: "The financial loss was too great. Stay
open? I don't think so. They took all my stuff."
"I wanted to clean up the city's image," said Mayor Morgan McPherson.
"I did not like what I saw in the windows of all those stores." He
added that if the businesspeople don't like it that they "call their
He cleaned it up all right. Aided by a complicit federal government
following their own set of laws, he kicked the businesses out without
due process of law. He disgraced its community, screwed its
businessman and advanced a disgusting partisan personal political
agenda. In the old Key West, he would have been recalled and reviled.
In the new Key West, he becomes a hero.
An enlightened mayor might have called the chamber of commerce or
invited a community discussion to discuss alternatives. The mayor
might have used code enforcement and local ordinances to mandate
zoning changes. Instead, he called and asked the feds to do what her
own city cops were not allowed to do.
Moti Elfasi, an Israeli by birth, is one of those businessmen whose
inventory was seized. Having lived in Key West for a decade, he loves
the atmosphere and the community of the island. But his head is
spinning over what happened to him.
Here is what he told local reporters: "I don't understand America.
They gave me a license in Key West. I paid my taxes. I obeyed the
law. Florida said it was OK to sell the things. But now people from
Immigrations and Customs Enforcement, and federal agents from the
Drug Enforcement Administration come in and take everything away from
me without even a notice to remove it first."
It's more than that, Moti.
You detrimentally relied upon the representations of Key West city
representatives that you could lawfully do what you were doing. Day
by day, hour by hour, Key West city police patrolled your business,
and no one told you that you could not do what you were doing. You
have been operating openly and legally for years. You paid your
taxes. You had an occupational license. You employed your neighbors.
Now you got screwed.
Key West is not the first city to deal with this conflict between
state and federal laws, nor will it be the last. California is of
course the epicenter of this cosmos of confusion, with the feds
neither recognizing medical dispensaries nor Proposition 215, a
medial marijuana law. Just last week, our federal government pushed
the envelope even further, raiding head shops in San Diego.
Across this country, over the past few years, other shops across this
country have been systematically and surreptitiously raided, and
their products seized. Meanwhile, pipes and paraphernalia are being
marketed nationally, expanding rapidly in convenience stores from
coast to coast. Find one repressive, right-wing mayor in the right
town with the wrong agenda and you could conceivably become the
target. Ask Tommy Chong. It's still happening on a wider scale.
What happens to the products that are seized?
Agents quietly warn the businessmen to suck up the forfeiture and not
challenge it in court. The advisory goes something like this: "Most
likely we will just destroy this stuff as contraband, but if you
attempt to challenge it, well there is no saying we won't come back
and arrest you." Facing a not-so-veiled threat of criminal
prosecution, the stores live with the bankruptcies, seizures and loss
of their products. The feds say they will destroy the contraband.
More likely, some of them will use it at their bachelor parties.
These raids may deprive stores of their inventory, but our government
abandons fundamental principles. Our citizens lose their rights.
Lawyers are denied the opportunity to meaningfully contest the
seizures. One more chink is carved into the heart of liberty.
If the past stays true to form, these unconscionable seizures will
not make the national news. Politicians are too complacent, the
drug-law reform movement is too weak, and the massive pot smoking
public is too disorganized, probably more concerned about getting
high on those products designed for legal purposes only.
As for those merchants, outside of a small circle of their friends,
no one cares.