OCEAN CITY – The City Council learned this week it can’t always get what it wants after enforcement of the town’s new emergency salvia ban lacked the sharp teeth that they so outspokenly promised it would.
On Tuesday morning Salvia was deemed an illegal substance to sell or possess in Ocean City by way of the town’s emergency ordinance that banned not only the product but the related paraphernalia.
In efforts to protect Ocean City’s family friendly image, town officials were told by State’s Attorney Joel Todd that if they wanted to rid the Boardwalk of the paraphernalia they had to ban the product.
With all the buildup and the political hype leading up to the passing of the new law on Monday night, including an emergency Police Commission meeting and a police sit down with Boardwalk merchants that were selling salvia, Tuesday’s police enforcement of the new law left many people scratching their heads in anti-climactic wonderment.
Despite three stores being officially charged with possession of salvia, identified as Ocean Wave, #2 Dorchester Street, Unit 102; Ocean Beachwear, 1101 Atlantic Avenue (Boardwalk); and Rave, 16 North Baltimore Avenue, no paraphernalia was confiscated from the Boardwalk, and as of 1 p.m. on Tuesday afternoon, some of the devices were even included in various stores’ outdoor displays.
“The most important thing is that we have removed all of the product from the streets”, said police spokesperson Jessica King. “There is a gray area concerning the paraphernalia, and we are trying to address that in the early stages of this new law.”
Officer Mike Levy of the OCPD said that several teams of detectives swept the Boardwalk on Tuesday and not only inspected the paraphernalia in the stores, but advised the store owners on what is legal under the new law and what is prohibited.
“Salvia is a no-brainer, and it’s obviously illegal, but paraphernalia is a different issue and we have to define that,” Levy said. “We are making every effort to be proactive and amicable with the businesses that were selling the product to help them understand the law as part of a partnership to not only enforce this law, but also help people understand the law.”
State’s Attorney Joel Todd, whose recommendation to the town concerning how the paraphernalia could be removed perhaps sparked that portion of the ordinance, stood behind the department’s tactics in enforcing the new law this week.
“Enforcement is up to police and my guess is that they are targeting the salvia first and will deal with the much harder issue of paraphernalia second,” said Todd. “As with anything, like if you get a speeding ticket, the police have the authority to charge you to the fullest extent of the law or merely give you a warning. In this case, the OCPD are solely in their rights to prioritize what they are going to do and how they enforce this new law.”
The Dispatch obtained a few letters this week touching on both sides of the argument about how much proverbial water the town’s new ordinance will hold.
First, the law offices of Coates, Coates & Coates, representing a group of small retail business owners including Cool Topics, sent a letter to City Manager Dennis Dare prior to the passing of the ordinance on Monday night claiming that the town’s law will be preempted by state law and that the town must file a petition with the Department of Health and Mental Hygiene and request that salvia be placed on the controlled dangerous substance list before enacting local legislation.
"In order for the Town of Ocean City to eliminate the sale and possession of salvia, they must follow the procedure already made available by the legislature,” wrote attorney Cathi V. Coates. “The Town must file a petition with the Department of Health and Mental Hygiene and request that salvia be added to the list of controlled dangerous substances pursuant to Criminal Law Article 5-202 and not by attempting to circumvent the procedure by enacting local legislation in the middle of the season.”
However, a letter from Robert McDonald, Chief Counsel Opinions and Advice for the State Attorney General’s office, poignantly states that he agreed with General Assembly counsel Dan Friedman’s July 22 letter saying that the town may regulate the sale or possession of salvia within the town limits of Ocean City.
Still, the law, which Councilman Jim Hall called “one that we need to get some teeth into”, has strict fines and possible imprisonment by way of misdemeanor rather than a municipal infraction charge.
Ocean City Police Captain Robert Bokinsky, who has dedicated a large portion of the last year to learning about salvia and its effects, said that some of the paraphernalia found in Boardwalk shops have historically been used for smoking flavored tobacco and is very difficult to prosecute.
“Just because it can be used for drug use, doesn’t technically mean that it’s being used for drugs,” said Bokinsky. “I think we are going to have a tough time with the paraphernalia and it’s a significant amount of work for something that carries essentially a $500 fine. We want to do everything that this law says, but we want to do it right.”
Bokinsky said that the department was unsure about seizing the paraphernalia, noting that in the cases of the three stores who were charged with salvia possession, none of them had salvia on the store shelves for sale.
“The stores had the product packaged and were awaiting the salvia vendor to come and pick the product up for a rebate on Tuesday evening, according to reports that I was told,” he said.
Still Bokinsky said that the enforcement of the new law would not come to a halt and will more than likely become more strict as the department gets comfortable with how to define the new law.
“We know that everyone is looking at us, and that the state is looking at us, and the easy thing would have been to go in there and just clear the shelves, but it wouldn’t have been the right thing to do,” said Bokinsky, “but the worst thing would have been to go in there like Elliot Ness. I assure you though, this isn’t over yet.”