GREENEVILLE — Kingsport, Bristol and Sullivan County are seeking a dismissal of a federal lawsuit filed by four local smoke shop owners challenging the constitutionality of recently approved bans on synthetic drugs.
Ultimate Smoke of Kingsport, Cloud 9 Emporium of Bristol and White Cloud Emporium and Hard Packs — both in Sullivan County — filed the lawsuit in U.S. District Court in Greeneville last month naming Kingsport, Bristol and Sullivan County as the defendants. Johnson City attorney Brandon Sizemore is representing the shop owners.
According to the lawsuit, the smoke shop owners allege multiple constitutional violations by the defendants, including due process, interference with private contracts, equal protection, and the commerce clause. The lawsuit claims the bans are vague and overly broad and provide no ascertainable standard for determining what substances are actually banned.
The lawsuit seeks to have the banning ordinances declared unconstitutional and for the court to impose a permanent injunction against the cities and county from enforcing the bans.
In response to the growing number of people using synthetic marijuana and so-called “bath salts,” Kingsport approved a citywide ban on the use, possession and manufacture of synthetic drugs Dec. 6. Soon after, Bristol and Sullivan County passed similar measures.
Since Kingsport’s ban went into effect, police have been monitoring the dozen or so shops and convenience stores that had allegedly been selling the products, noting that all but one are in compliance. However, no citations have been issued to date.
Last week, Sullivan County Attorney Dan Street filed an answer to the lawsuit on behalf of the county, denying the allegations and making a number of affirmative defenses in the response saying the plaintiffs have failed to state a cause of action where relief can be granted and that any damages sustained by the smoke shop owners were caused by their own actions.
Knoxville attorney Reid Spaulding filed a separate motion to dismiss on behalf of Kingsport and Bristol earlier this month, claiming Sizemore’s legal allegations “read like nothing more than an outline ripped directly from a constitutional law hornbook.”
As with Street, Spaulding also asserts the plaintiffs have failed to state a claim where relief could be granted and argues the plaintiffs do not have standing to bring the current lawsuit against the county and its cities.
In order to have standing, Spaulding said the plaintiffs have to show injury that is actual or imminent and not conjectural or hypothetical.
The smoke shop owners claim none of their products contain synthetic cannabinoids as listed under state law and do not possess or sell any products illegal under federal and state law. The shop owners contend their products are herbal incense and potpourri and are not for human consumption.
“Carried to its logical conclusion, (the) plaintiffs apparently complain of an ordinance that has zero effect or concern relating to anything any of these plaintiffs allegedly offer for purchase in their respective retail establishments,” Spaulding wrote in his response. “As the case stands currently, plaintiffs can show zero injury.”
Sizemore has said his clients do not possess or sell synthetic drugs known as “bath salts” or “any similar products” and do not oppose “them getting rid of” such products. The lawsuit contends the shop owners instruct customers on the proper way to use incense for aromatherapy and warn the products should not be smoked or consumed in any way.
Synthetic marijuana — marketed as “K2” or “Spice” — is a chemical applied to herbal substances, incense or potpourri and smoked to mimic marijuana, but with a stronger hallucinogenic reaction. Some users have experienced strokes and seizures. Bath salts are sold in powder form under various brand names and produce an effect similar to methamphetamine.