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Judge backs City of Duluth in synthetic drug fight

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A federal magistrate judge Monday denied the owner of Last Place on Earth’s motion for a preliminary injunction to keep the city of Duluth from enforcing its ordinance regulating sales of synthetic drugs.

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Head shop owner Jim Carlson’s attorney, Randall Tigue, filed a motion arguing that the city ordinance is unconstitutional because it requires an individual applying for a city license under the new ordinance to provide self-incriminating information, in violation of the Fifth Amendment to the U.S. Constitution. Carlson faces federal charges after being indicted by a grand jury for allegedly selling misbranded synthetic drugs and chemicals substantially similar to controlled substances.

The city ordinance took effect Thursday, two days after Carlson filed his complaint and motion for preliminary injunction. Carlson stopped selling synthetics at the store rather than apply for the city license and still was not selling the products Monday evening.

U.S. Magistrate Judge Leo Brisbois wrote in a 24-page report and recommendation that the court does not believe that the city ordinance requires any applicant to make any compelled self-incriminating statements by the mere application for a license.

“Therefore, the court finds that plaintiff has not met his burden of demonstrating a threat of immediate irreparable harm, and that, on the record now before the court, this factor weighs heavily in favor of denying plaintiff’s motion for a preliminary injunction,” Brisbois wrote.

The parties may file objections to the report and recommendation by noon today. A party may respond to the objections by noon Wednesday. According to U.S. District Chief Judge Michael Davis, an expedited order will be issued ruling on the case after the objection period has passed.

Carlson always has maintained that he thought the synthetic products he sells are legal.

City attorneys had argued that Carlson can’t claim on one hand that his products are illegal and by applying for a license he will incriminate himself and on the other hand claim that the same products are legal. The city said that if, as Carlson claims, his products do not contain chemical compounds that are controlled-substance analogues that are regulated by federal law, then requiring the licensing of the products does not implicate his Fifth Amendment rights.

A “controlled substance analogue” is a substance with a chemical structure that is substantially similar to the chemical structure of a controlled substance and that has a stimulant, depressant or hallucinogenic effect that is substantially similar to the effect of a controlled substance.

The city’s ordinance is intended to regulate the sale of products that are not currently recognized as, or known to be, controlled-substance analogues, but still produce effects similar to controlled substances.

Brisbois presided over a hearing Friday in federal court in Duluth. Deputy City Attorney M. Alison Lutterman and Assistant City Attorney Nathan LaCoursiere argued the city’s position. Duluth attorney David Malban represented Carlson. Malban declined comment Monday.

“I think the judge did a nice analysis of the likelihood of success for Carlson to prevail on the merits of the case,” said City Attorney Gunnar Johnson. “He found that the plaintiff did not demonstrate that he was likely to prevail on the merits of the case. Clearly, Judge Brisbois moved forward in a very expedited manner by having the hearing last week and having this well-reasoned decision Monday by noon. It means that the court has put a lot of work and thought into this matter in a very timely manner.”

Carlson’s chief attorney, Randall Tigue, of Golden Valley, Minn., did not return a phone call seeking comment. Carlson didn’t answer his cell phone during repeated attempts to reach him after the decision was released and his voice mail wasn’t activated. He also was not available for comment at his shop.

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