Big bong battle
A tale of two cities: City of Pleasanton vs. Cigarette City
Walk into any convenience store, and you'll probably find drug paraphernalia behind the counter in the form of rolling papers and cigar wrappers, more commonly known as "blunt" wrappers.
But a battle is brewing between Cigarette City and Pleasanton officials about bongs, glass pipes ostensibly used for tobacco but more often used to smoke marijuana.
Walid Akbarzadeh owns and runs Cigarette City. He was told last week by Pleasanton police to take bongs off his shelves and to stop selling them.
"They're like, 'No, that's illegal,'" Akbarzadeh said. "Why did it take two years to come out and say it's illegal?"
He said he included in his business license application to Pleasanton that he intended to sell pipes.
When he opened, Akbarzadeh said police officers told him, "Just keep minors out."
"That was their only concern," he said.
He points to city municipal code that specifically allows the sale of drug paraphernalia, as long as it's "in a separate room or enclosure to which minors not accompanied by a parent or legal guardian are excluded."
Akbarzadeh said he's been told all along -- up until recently, anyway -- that his shop was legal.
Both those things are true, said Larissa Seto, assistant city attorney. But, she said, state health and safety law trumps city codes.
"The provisions in municipal codes have been superceded by the California Health and Safety Code, making trafficking in drug paraphernalia (including both possession and sales) a misdemeanor," Seto said. "Because the city has never had a business seeking to sell drug paraphernalia, the city has never removed these provisions from municipal code."
She agreed the city's code enforcer did tell Akbarzadeh his shop was legal.
"Our code enforcement officer, when he reviewed municipal code, had the same misconception that had Mr. Akbarzadeh. We corrected that. ... He's only allowed to operate as a tobacco shop, selling cigarettes, tobacco pipes and the types of things he listed in his business application," Seto said.
Akbarzadeh, however, maintains that bongs are not drug paraphernalia until someone uses them for something other than tobacco. He estimated that he'd sold 200 bongs, which he calls glass, since he opened almost two years ago.
He said the city has told him his store has been morphing into a head shop -- the kind of place that caters exclusively to drug clientele. Seto agreed.
"His business, I would describe it as 'evolved.' When it first went in it had a lot more of the merchandise that he indicated he'd be selling," Seto said, adding that meant tobacco products. "It has evolved into the selling of drug paraphernalia. Now that the merchandise has changed, a lot of it is listed in California Health and Safety Code as being illegal."
Akbarzadeh, though, said he's been selling bongs since the day the store opened, although he said he added stock and put more of them on display.
Referring to the visit by the code enforcement officer, Akbarzadeh said he felt like he was being targeted by city officials.
"He comes back two weeks later saying, 'We've got some complaints about your store. We're going to have to see if you're breaking any city codes,'" Akbarzadeh said.
He added he'd even been told by two police officers, whom he identified, that his store was legal, although Seto said, "He hasn't been able to tell us which officers said that."
"He is selling bongs, air-driven pipes, is selling scales and containers that have marijuana leaves all over them and he is selling different kinds of chamber pipes, carburetor pipes," Seto said. "If he were just selling loose-leaf tobacco, the papers to roll tobacco cigarettes -- these things are allowed to be sold in tobacco shops. But he is selling scales and small types of Baggies that are listed in the state law as drug paraphernalia."
Seto said the city is hoping for voluntary compliance, but added, "If he's unable to do that, we're going to have to bring an enforcement action."
That could mean a misdemeanor conviction, although Akbarzadeh has taken every questionable item off the shelves while the fight continues.
Part of the problem is likely to do with complaints. While Seto couldn't say how many the city had received -- more than 10, she allowed -- she said those complaints have come from all quarters.
"Parents of school-age children, residents in the area and then business owners in the area (all have contacted the city to ask that something be done)," she said.
It probably doesn't help that the store is just a few blocks from Village, the school district's continuation high school. On any given afternoon, students from Village are among those who frequent the store, although Akbarzadeh said he's always careful to ask for identification from even those who have become regulars.
"There's customers we know are 18, but (I say) let me see some ID," he said. "There a lot of 18-, 19-, 20-year olds, they come in here every day, but I still want to see if they have it on them," Akbarzadeh said, explaining that some police officers have stopped his clients with cigarettes and checked their IDs.
Akbarzadeh said there are a lot of things that could be done without targeting his business, which, he said, has brought in $50,000 in sales tax during the 21 months it's been open.
"If (police are) trying to protect the community, they need to go after drug dealers," he said. "Parents who are worried that this shop is here, talk to your kids, try to tell them about drugs, advise them about the dangers of drugs. If my brother gets drunk, I'm not going to go after shops that sell alcohol."
Akbarzadeh said some police officers have been slandering him, saying that his store sells drugs. He said he's ready to fight the city, either for the right to bring bongs back, or to get compensated for the investment he made before the city decided to crack down.
He said that Dublin and Livermore have similar shops; San Ramon has one as well, and others are in operation across Alameda County.
If Akbarzadeh decides to ask for the right to bear bongs, state code spells out exactly what kind of evidence would be presented on both sides.
It reads: "In determining whether an object is drug paraphernalia, a court or other authority may consider, in addition to all other logically relevant factors, the following:
(1) Statements by an owner or by anyone in control of the object concerning its use.
(2) Instructions, oral or written, provided with the object concerning its use for ingesting, inhaling, or otherwise introducing a controlled substance into the human body.
(3) Descriptive materials accompanying the object which explain or depict its use.
(4) National and local advertising concerning its use.
(5) The manner in which the object is displayed for sale.
(6) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.
(7) Expert testimony concerning its use.