The Bong Goodbye
When tobacco seller Douglas Primavera was charged two months ago with peddling drug paraphernalia out of his small shop in downtown Alamosa, more than a few eyebrows were raised. After all, if anyone should have been familiar with the state law covering the sale of bongs, it would be Primavera--who up until six years ago was Alamosa County's district attorney.
And Primavera, who left office in 1992, insists that he does know the law. "I think the law is fairly clear," he says. "According to state statute, there are eleven factors that determine whether something qualifies as drug paraphernalia. And I didn't have any of them."
Backing up Primavera on that point is Huerfano County DA Glen Davis, who was brought in last year to prosecute his former colleague on similar charges but opted to let the case die. "Frankly, I don't think it could be proven beyond a reasonable doubt," says Davis.
But Alamosa police chief Ronald Lindsey is proving a stubborn opponent. He first busted Primavera last summer for selling water pipes that the chief suspected were being used as marijuana bongs. This past March 24, less than three months after Davis declined to prosecute that case, Lindsey sent one of his detectives back into Primavera's shop to confiscate more pipes.
"This is a small community," the chief explains. "His is an open business, and it was brought to our attention by city hall. We think our interpretation of the law is the correct one."
"There are some people in a small community who don't want the stuff around," acknowledges Primavera, who insists that some smokers actually use water pipes to smoke tobacco and herbs. He claims the water method can cut tar and nicotine intake by up to 50 percent.
"But that's not the point of the law," adds the former prosecutor. He says that while the water pipes he sells could conceivably be used for smoking pot, the law allows him to sell them. "What people do when they walk out of my shop is not up to me," he argues. "I sell cigarettes to people over the age of eighteen, but I'm sure that some of them end up in the hands of kids. I can't control that."
The drug drama delights the state's pot lobby. "Really? A former DA?" chuckles Warren Edson, a Denver attorney who handles many dope cases for the National Organization for the Reform of Marijuana Laws (NORML). "That's great!"
Primavera's case also has other local prosecutors scrambling to reconcile their desire to appear tough on drugs with their allegiance to their former colleague. "I've worked with Doug for fifteen years, and so it would have been difficult to bring charges," explains Bob Pastore, Alamosa County's current DA.
"He's a friend of mine, a former DA--a lot of people still mistake us for each other. I've found him to be a real decent guy. What's happening now is difficult to see and would have been impossible for me to prosecute. No matter what I did, it would have had the appearance of impropriety." To avoid the conflict, Pastore quickly booted the case to Glen Davis in neighboring Huerfano County.
Despite his status as the former top law enforcement official for a swath of south-central Colorado (the Alamosa DA also handles prosecutions in the adjacent counties of Mineral, Saguache, Rio Grande, Costilla and Conejos), Primavera has a history of butting heads with the system. Last July the Colorado Supreme Court suspended his law license for 105 days for neglecting two criminal cases and a dependency-and-neglect matter. ("Doug said that you do not pay him enough to demand his time," Primavera's secretary told one client after the man attempted to contact Primavera.) In 1995 Primavera was publicly censured by the Supreme Court Disciplinary Committee for failing to pay court-ordered child support.
Primavera had an equally hard time keeping his nose clean before being elected DA in 1988. In the 1970s he received six admonitions from the Colorado Bar Association for neglecting legal matters, according to Supreme Court records.
Having his license suspended last summer after thirty years in the profession was a blow for Primavera. But fortunately for him, he'd already secured a steady source of back-up income. "I've always smoked cigars and pipes, and there wasn't a tobacco shop in the area," he notes. In April 1997 Primavera opened a small store across the street from the district attorney's office. Initially, his private law practice was situated in the back room. "His legal secretary would also sell you cigars," recalls Pastore.
In addition to cigarettes and cigars, the San Juan Tobacco Company hawks T-shirts, sunglasses, incense--and colorful plastic water pipes. "For lawful use only," a sign sternly advises.
That warning apparently didn't convince some locals that Primavera was on the up-and-up, and by last summer, Chief Lindsey says, city officials had received "a number" of complaints that the ex-prosecutor was hawking bongs out of his shop. Getting a warrant to look into the matter, however, took some effort. DAs Davis and Pastore both refused to ask a judge to issue one, but after Lindsey pursued the matter himself, a local judge finally sympathized with the chief. On July 3 Alamosa police investigator Rick Needam presented Primavera with a search warrant informing him that he was in violation of state laws prohibiting the sale of drug paraphernalia. The detective then seized Primavera's water pipes and, despite Davis's obvious lack of interest, forwarded the case to Huerfano County for prosecution.
"It's a muddy law," Detective Needam acknowledges. "But it is our chief's position that Mr. Primavera is violating it."
What makes the law particularly confusing for cops is that while it specifically identifies water pipes as a type of paraphernalia frequently used to smoke pot, the statute also recognizes the implements as legitimate smoking accessories when sold by a licensed tobacconist. As the result of such haziness, the law is rarely used to bust legal vendors.
In fact, according to the state judicial department, the statute has been used only once in the past four years. And even in that El Paso County case, the paraphernalia charge was tacked on to a host of more serious drug offenses.
Indeed, enforcement of the bong law usually comes down to a local police chief's opinion on the matter. "It's one of the most subjectively applied laws in the United States," complains Allen St. Pierre, the Washington, D.C.-based executive director of NORML. Adds Denver attorney Edson, "There's no rhyme or reason. It drives me crazy." He cites the recent example of a man who sold glass pipes "up and down the Front Range" but was quickly busted when he took his wares to Telluride.
Bearing all that in mind, Davis decided to let the case against Primavera die. "I know some parts of the state might use that law," he explains. "But a lot of people only read the first part of the statute, which defines drug paraphernalia. They don't get to the part where it says it's okay if the owner of the shop supplies other legal stuff."
This past January 3, a Huerfano County district court judge dismissed the case with Davis's blessing. Davis says he recommended that if Primavera's pipes really meant that much to Alamosa's city fathers, they should try a different strategy. "My suggestion was to enact a city ordinance [forbidding the sale of water pipes] and deal with it that way," he says.
Chief Lindsey was adamant, however, and two months ago, after getting yet another judge to issue yet another search warrant, he ordered Detective Needam back into Primavera's shop. "This is a much more redneck community than, say, Boulder," Needam explains. "There's been a lot of people who have complained about it."
Selling a bong is a petty offense--a step below a misdemeanor--and carries a maximum penalty of $100. Still, both sides say they're prepared to press the matter, which is now back in Davis's lap. "The court will have to decide whether our interpretation is right, or his is," vows Chief Lindsey.
Primavera says he never prosecuted a paraphernalia case during his tenure as DA. "No one ever sold anything like this in this jurisdiction before," he says. And he confesses to being confused over Lindsey's zealous pursuit of his pipes.
"I think the police want to control this town, and if they don't like something, they're going to get rid of it any way they can," says Primavera. "And I think they want to try and appear like they're smarter than the lawyers.
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