The Heat on Duval Street

“Look outside the window, there’s a woman being grabbed
They’ve dragged her to the bushes and now she’s being stabbed
Maybe we should call the cops and try to stop the pain
But Monopoly is so much fun, I’d hate to blow the game
And I’m sure it wouldn’t interest anybody
Outside of a small circle of friends.”

— Phil Ochs

Duval Street is the epicenter of Key West, home to Sloppy Joe’s, Hemingway’s and a host of bars and hotels which 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 Cadillace 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 changing. The times they have changed.

The temperature on October 17, 2008 in Key West was its typical and tropical 75 degrees. Ladies were sunning themselves bare-breasted at the Pier House’s private beach. Fishermen were working the pier, vacationers on mopeds criss-crossed 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 state 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 different 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 cart away and confiscate the inventory of these stores to the waiting Budget U Haul Rent-a-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 then were rolling papers, lighters, ash trays, 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. Said Abby Frew, the owner of a shop called Energy: “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 business people don’t like it, they “call their congressman.”

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 okay 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 Prop 215. Just last week, our 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 also seized. Meanwhile, pipes and paraphernalia are now 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 which 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.

NORM KENT is a constitutional rights and criminal defense lawyer in Fort Lauderdale, Florida, and can be reached at norm@normkent.com. He is in the process of creating his own blog which can be viewed at www.kentvent.blogspot.com





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Norm Kent, a Fort Lauderdale attorney, is the Chairman of the Board of Directors of NORML.

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