Protection from frivolous charges

[macscards]

I am from Tennessee. I am looking into selling glass art. There are many establishments that sell similar or identical items, seemingly without a problem. I know the federal law reads:

The law for Paraphernalia are different in each state and some have repealed laws. As well as individual state laws; there are federal laws governing the use, possession and sale of Paraphernalia:

Federal Law; Office of Diversion Control

Section 863. Drug Paraphernalia

(a) In general
It is unlawful for any person --
(1) to sell or offer for sale drug paraphernalia;
(2) to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or
(3) to import or export drug paraphernalia.

(b) Penalties
Anyone convicted of an offense under subsection (a) of this section shall be imprisoned for not more than three years and fined under Title 18.

(c) Seizure and forfeiture
Any drug paraphernalia involved in any violation of subsection (a) of this section shall be subject to seizure and forfeiture upon the conviction of a person for such violation. Any such paraphernalia shall be delivered to the Administrator of General Services, General Services Administration, who may order such paraphernalia destroyed or may authorize its use for law enforcement or educational purposes by Federal, State, or local authorities.

(d) "Drug Paraphernalia" defined
The term "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, possession of which is unlawful under this subchapter. It includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marihuana, cocaine, hashish, hashish oil, PCP, methamphetamine, or amphetamines into the human body, such as --
(1) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
(2) water pipes;
(3) carburetion tubes and devices;
(4) smoking and carburetion masks;
(5) roach clips: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand;
(6) miniature spoons with level capacities of one-tenth cubic centimeter or less;
(7) chamber pipes;
(8) carburetor pipes;
(9) electric pipes;
(10) air-driven pipes;
(11) chillums;
(12) bongs;
(13) ice pipes or chillers;
(14) wired cigarette papers; or
(15) cocaine freebase kits.

(e) Matters considered in determination of what constitutes drug paraphernalia;

In determining whether an item constitutes drug paraphernalia, in addition to all other logically relevant factors, the following may be considered:
(1) instructions, oral or written, provided with the item concerning its use;
(2) descriptive materials accompanying the item which explain or depict its use;
(3) national and local advertising concerning its use;
(4) the manner in which the item is displayed for sale;
(5) whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
(6) direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise;
(7) the existence and scope of legitimate uses of the item in the community; and
(8) expert testimony concerning its use.

(f) Exemptions
This section shall not apply to --
(1) any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items; or
(2) any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory.

Now, if my disclaimer reads:
This website complies with U.S. Title 21, Chapter 13, Subchapter I, Section 863, Part F and does not sell pipes or any other products that are considered drug paraphernalia by United States Law.

STATE LAW STRICTLY PROHIBITS THE SALE OF TOBACCO OR SMOKING PARAPHERNALIA TO PERSONS LESS THAN EIGHTEEN (18) YEARS OF AGE. PROOF OF AGE MAY BE REQUIRED.
To enter site, you must agree to adhere to all applicable local and federal laws while on this site. Orders wherein local and/or federal law may prohibit items, order will not be shipped and a full refund will be issued. By clicking "I Agree", you hereby declare you are over the age of 18 (21 in some states). All items are, in the normal lawful course of business, and are imported, exported, transported, or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory. By viewing you signify your acceptance of these terms of service. It is your sole responsibilty to know your state and local laws regarding the possesion and use of tobacco pipes and accessories. Mac's Cards Coins & Collectibles is not responsibleIf you are under the age of 18 (21 in some states) or do not agree with the above, DO NOT ENTER.

Will this protect me from frivolous charges of paraphernalia?

 

[Just Blue]

Remember Chong????

 

[macscards]

Chong

What about Tommy Chong, wasn't he the guy who glorified drug use in several movies? Didn't he make appearances at head shops promoting legally sold merchandise for use with illicit drugs?

I hardly see what Chong has to do with me. I am a simple business person who sells items beneficial to my customers. I do not condone nor intend for my products to be used in any illegal manner.

The law itself says traditional and historical use is NOT the sole factor to be used when determining the legitimacy of the items being marketed. The items addressed aren't illegal unless they have been put to an illegal use.

Glass is inert, and will not pose any risk of inhaling oxides (as with metals), or combustion products other than the material being smoked (as with wood) Soda-lime Glass, or Borosilicate Glass (two common glass compositions) have very high thermal resistance, and so conduction from the heat source is minimal. The water has an important filter effect. A large part of carcinogens like tar are filtered by the water. In addition, the water cools the hot smoke and the protecting mucous membrane of the lungs will be less harmed.

But a wooden pipe which may cause more damage to one's health is legal to sell?

 

[Zigner]

Oh BROTHER -

Why do I expect that this poster will be back in a few months with further CRIMINAL LAW questions?

 

[macscards]

Return for answers?

Why would I come back with further criminal law questions? Zigner you can't even answer the one I have now. Will the disclaimer protect me from frivolous charges?

What makes you think anyone would return for more answers like "Remember Chong?" (like his case set some sort of precident). Or answers that aren't answers, actually they are questions, like "Why do I expect that this poster will be back in a few months with further CRIMINAL LAW questions?"

What a top notch legal team here. Worth every penny of free!

Now, if someone has some REAL advice, please post. It will be greatly appreciated.

 

[CdwJava]

Forget about federal law for a moment, what does Tennessee law say on the subject? They may decide that these "glass art" pipes are what everyone KNOWS they are - marijuana pipes.

What you need to find out is how TN courts have interpreted possession of these items pursuant to this law:

39-17-425. Unlawful drug paraphernalia uses and activities. —

(a)(1) Except when used or possessed with the intent to use by a person authorized by this part and title 53, chapter 11, parts 3 and 4 to dispense, prescribe, manufacture or possess a controlled substance, it is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this part.

(2) Any person who violates this subsection (a) commits a Class A misdemeanor.

(b)(1) Except when delivered, possessed with the intent to deliver, or manufactured with the intent to deliver by a person authorized by this part and title 53, chapter 11, parts 3 and 4 to dispense, prescribe, manufacture or possess a controlled substance, it is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this part.

(2) Any person who violates subdivision (b)(1) commits a Class E felony.

(3) Except when delivered by a person authorized by this part and title 53, chapter 11, parts 3 and 4 to dispense, prescribe, manufacture or possess a controlled substance, any person eighteen (18) years of age or over who violates this subsection (b) by delivering drug paraphernalia to a person under eighteen (18) years of age who is at least three (3) years younger than that person commits a Class E felony.

(c)(1) It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication, any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia.

(2) Any person who violates the provisions of subdivision (c)(1) commits a Class A misdemeanor.
​

On a personal note, I've been on this Earth for a reasonably long time and have known and worked with smokers my entire life and I have NEVER come across anyone who smokes tobacco in one of these pretty glass pipes. So, you and others can call these what you will and then wink and nod, but we KNOW what they are used for.

I suspect that until or unless there is some residue within the pipe, then it will be lawful ... but, TN case law may not be in your favor. If I were you, I would do a little more research and also speak to an attorney before you embark upon this path. You likely also have to get waivers or conditional use permits to open such a business, but that's something the local city offices should be able to tell you.

- Carl

 

[Zigner]

Will this protect me from frivolous charges of paraphernalia?

No - and they wouldn't be "frivolous" charges

 

[seniorjudge]

No - and they wouldn't be "frivolous" charges

Correct.

You can't call your local prosecutor and say, "Listen, I plan to do something possibly illegal in the future. Would you tell me NOW if what I do THEN will be illegal. Okay, thanks, I'll hold."

 

[Some Random Guy]

The "remember Chong" comment was intended to make you use google to see that Chong spent time in prison for selling glass "art".

You are selling "art" that nobody would buy unless they indended to use it for smoking MJ. To insist otherwise insults our intelligence.

I am a simple business person who sells items beneficial to my customers.

Yes, those items are beneficial to the customers who smoke MJ. Egro, paraphernalia.

 

[macscards]

Forget about federal law for a moment, what does Tennessee law say on the subject? They may decide that these "glass art" pipes are what everyone KNOWS they are - marijuana pipes.

On a personal note, I've been on this Earth for a reasonably long time and have known and worked with smokers my entire life and I have NEVER come across anyone who smokes tobacco in one of these pretty glass pipes. So, you and others can call these what you will and then wink and nod, but we KNOW what they are used for.

- Carl

Thank you Carl for giving me a place to start. Your post was informative and useful.

Personally, I believe the reason you have not seen these smokers you worked with use these pipes is because they are at work. It's much more convenient to just grab a cigarette that is pre-rolled. But when one has the time to sit back and enjoy their tobacco, it's sometimes nice to have a piece that is aesthetically appealing, functional, as well as safe. I enjoy cigarettes as well as my pipe tobacco. The main reason I smoke cigarettes in public instead of my pipe is because of the ignorance of so many people who think they are only for one use--something illegal. Maybe one day society will allow me to use my pipe in public. I believe anyone who smokes tobacco would benefit from a reduction in tar, a reduction in heat from the smoke, and just an all around safer way to enjoy tobacco. Not to mention, like you said, they are pretty.

 

[Zigner]

Thank you Carl for giving me a place to start. Your post was informative and useful.

Personally, I believe the reason you have not seen these smokers you worked with use these pipes is because they are at work. It's much more convenient to just grab a cigarette that is pre-rolled. But when one has the time to sit back and enjoy their tobacco, it's sometimes nice to have a piece that is aesthetically appealing, functional, as well as safe. I enjoy cigarettes as well as my pipe tobacco. The main reason I smoke cigarettes in public instead of my pipe is because of the ignorance of so many people who think they are only for one use--something illegal. Maybe one day society will allow me to use my pipe in public. I believe anyone who smokes tobacco would benefit from a reduction in tar, a reduction in heat from the smoke, and just an all around safer way to enjoy tobacco. Not to mention, like you said, they are pretty.

GREAT! Thanks for that - I needed a nice belly-guffaw before settling in after lunch!

 

[macscards]

The first glass pipe I bought was from a tobacco shop in my hometown where all sorts of tobacco paraphernalia can be found ranging from lighters, to rolling papers, machines that make cigarettes, ashtrays, and the like. It was more economical for myself to use a pipe for tobacco rather than purchasing cigarettes and I thought it was neat. It is possible that some people may have misused some of those item in that store for other things. I've heard that people who use "crack" and "meth" use lighters to ignite their nasty drug. Maybe because this is known, then all lighters are drug paraphernalia. Or maybe we should just say that all the lighters that are brightly colored should be classified as drug paraphernalia. The last two sentences are used to show the irony.

And as far as the comment, "Chong" spent time in prision for selling glass 'art'." That is a misstatement. He was convicted and spent time for selling and promoting his glass AS drug paraphernalia.

Intelligence is defined by Merriam-Webster as the ability to learn or understand or to deal with new or trying situations, also the act of understanding.

I can see how someone who is not open to change, might have an opinion similar to those whom have stated

"You are selling "art" that nobody would buy unless they indended to use it for smoking MJ. To insist otherwise insults our intelligence."

In this case, if one cannot understand the new situation of using a glass pipe in which to smoke their tobacco, is lacking intelligence. My intention is not to insult, but to inform that these items do have a valid place in society, as an alternative that reduces harmful carcinogens for those that choose to use tobacco.

 

[Zigner]

If you insist on selling bongs, knock yourself out...

How DARE you! They are NOT BONGS - they are WATER PIPES - or GLASS ART.

 

[macscards]

I do not posess, manufacture, sell, and I do not intend to posess, manufacture, or sell any "bongs". I am NOT asking how to legally sell something that is illegal. I am merely trying to protect myself from frivolous charges for selling something that is legal, useful, and safe.

You do not have to agree with my philosophy, but please do acknowledge that it exists. That, my friend, is a sign of intelligence.

Furthermore, what business model do you follow to be a role model at this forum, and insult the people who click on the ads?

You're so full of crap, your eyes are brown.

If you insist on selling bongs, knock yourself out... but don't expect anyone here to tell you how to do it legally.

I suggest that you save your arguments for trial. Who knows... maybe you'll end up before a judge who happens to be a closet weed smoker. Stranger stuff's happened.

 

[seniorjudge]

Tommy Chong is an unsung hero:

(from an unauthorized bio)

A few years later, Chong's music career took a turn into comedy.

While on tour, he saw cutting-edge comedy teams like Chicago's Second City, and was inspired to leave music. He started a new career, converted his brother's failing Vancouver bar into a comedy house.

"It was a topless joint and I didn't have the heart to fire the strippers," said Chong, "so when I turned the show into a comedy troupe known as 'City Works,' I put the girls in the skits. We had the only topless improvisational theatre in Canada."



Hmmm...ya think maybe he was Client Number One?