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City of Duluth v. 120 East Superior Street, Duluth

Court of Appeals of Minnesota

September 16, 2013

City of Duluth, Respondent,
v.
120 East Superior Street, Duluth, Minnesota, Appellant.

UNPUBLISHED OPINION

St. Louis County District Court File No. 69DU-CV-12-2953

Gunnar B. Johnson, Duluth City Attorney, Nathan LaCoursiere, M. Alison Lutterman, Assistant City Attorneys, Duluth, Minnesota (for respondent).

Randall D.B. Tigue, Golden Valley, Minnesota (for appellant).

Considered and decided by Worke, Presiding Judge; Rodenberg, Judge; and Smith, Judge.

SMITH, Judge

We affirm the district court's order granting respondent's motion for a partial temporary injunction because the district court did not abuse its discretion by requiring appellant to pay for two police officers to be present at appellant's place of business during its operating hours, including one hour before opening to one hour after closing. We decline to address the constitutionality of Minn. Stat. § 609.74(1) because appellant's argument that the statute is unconstitutionally vague is not properly before the court.

FACTS

A law banning synthetic cannabinoids went into effect in June 2011. Compare Minn. Stat. § 152.027, subd. 6 (2012), with Minn. Stat. § 152.027 (2010). As a result, appellant 120 E. Superior St., Duluth, Minnesota (LPOE)[1] became a popular place for people to buy synthetic or "legal alternatives" to controlled substances because it was the only commercial operation in the area selling such alternatives. Subsequently, LPOE experienced an increase in the number of customers standing outside the store an hour before opening and throughout the day as well. The effect of selling synthetic drugs and the resulting behavior of LPOE patrons, from September 2011 to August 2012, gave rise to respondent City of Duluth's (city) public nuisance action.

From September 2011 to August 2012, LPOE sold, and continues to sell, many items such as "spice, " "bath salts, " "incense, " "watch cleaners, " "pipe cleaners, " and synthetic or designer drugs, such as synthetic marijuana, which act as alternatives to controlled substances. See Minn. Stat. § 152.027, subd. 6 (2012) (making it unlawful to sell synthetic cannabinoids). LPOE also continues to market "bath salts" and "incense" as synthetic drugs, which, although labeled "not for human consumption, " are used by patrons for ingestion. The effect of LPOE becoming the sole supplier of synthetic drugs has resulted in LPOE experiencing a surge in customers. The increase of customers created problems for surrounding businesses. Neighboring businesses complained of a mass number of people congregating and loitering around LPOE. Police received calls that LPOE patrons blocked sidewalks and access to surrounding buildings and were engaging in loud, belligerent, and violent conduct. Furthermore, LPOE customers vomited, urinated, and defecated near buildings surrounding LPOE. Moreover, LPOE customers engaged in littering, panhandling, and sexual overtures and verbal abuse of passing pedestrians and patrons of surrounding businesses. LPOE patrons also threatened, insulted, and intimidated employees of surrounding buildings. Affidavits from neighboring businesses also reported property damage, loss of walk-in revenue, and a reduction in foot traffic.

LPOE's sale of synthetic drugs and the resulting behavior of LPOE patrons also affected emergency responders and Duluth's resources. The conduct of LPOE patrons resulted in the police responding to 2, 843 calls for service to LPOE and the neighboring blocks from September of 2011 to August of 2012. The increase in police presence resulted in an increased burden on taxpayers after LPOE became the sole retailer of designer drugs in Duluth. According to Lieutenant Eric Rish of the Duluth Police department:

The cost to the public of providing extra police enforcement and security at LPOE from November 2011 to [October 2012 was] at $97, 450 . . . This figure does not even begin to factor in the overall cost of police services related to the sale and recreational use of synthetic cannabinoids and its derivative impacts throughout the community.

The district court noted, "It is clear that the sale of these substances is the primary cause of the 81% increase in requests for law enforcement in the area." In addition, the health effects on users ingesting drugs have created a burden on hospitals. As one medical professional noted:

Aside from the health risks . . . the emergency medical costs of treating these patients is often quite high, which generally raises the costs of medical care for all of us, particularly where the health care institutions ...

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