Pubdate: Thu, 20 Dec 2007
Source: Argus Observer (OR)
Copyright: 2007 Ontario Argus Observer
Contact:  http://www.argusobserver.com
Details: http://www.mapinc.org/media/4163
Author: William Lundquist
Bookmark: http://www.mapinc.org/find?228 (Paraphernalia)

VALE ATTORNEY TAKES OLD SCHOOL CASE

Brian Zanotelli Says City's Case Against Merchant Is 'Pretty Lame'

Ontario - The owner of Old School, the downtown Ontario  business the 
City of Ontario is suing for allegedly  selling drug paraphernalia, 
has retained Vale attorney  Brian Zanotelli to represent her side of 
the case in  court.

"It's a pretty lame case," Zanotelli said Wednesday of  the suit 
against his client, Victoria Miller.

He said the city delivered the civil suit to Miller  Dec. 4 or Dec. 
5, and she has 30 days to respond.  Zanotelli said he is still 
preparing the response, but  said he will deliver it in a week or so.

"We will just say it (the city's suit) is crazy. It's  wrong. They 
don't have a leg to stand on," Zanotelli  said. "They will have to 
have some hard evidence that  Victoria knew she was selling things to 
be used  illegally, and I can't wait to see what that is."

He said restaurants in some Portland neighborhoods  serve flavored 
tobacco in glass water pipes to  customers at outside tables. He said 
he wondered how  the city could show that is not what Miller sells 
her pipes for. Then there is the whole issue of medical  marijuana in 
Oregon, where some people can legally use  Miller's pipes for 
marijuana, he said.

Ultimately, Zanotelli said, this suit will be an  embarrassment for 
Ontario. He said Nyssa sued a strip  club and that case went all the 
way to the Oregon  Supreme Court. Nyssa not only lost, he said, but 
spent  a fortune doing it.

"I feel sad for Ontario," Zanotelli said. "This could  wind up in the 
Supreme Court."

While he feels bad that Ontario's reputation may suffer  statewide, 
Zanotelli said, he and Miller have no plans  at this point to file a 
countersuit and hurt the city  or its citizens.

"Victoria doesn't want to get rich on this," he said.  "She just 
wants it to go away. We've got a little fire  going here. Our 
response will be to pour water on it,  not gasoline."

Malheur County District Attorney Dan Norris, who is  leading the 
city's legal effort against Old School,  recently said the chief 
catalyst for his involvement in  the civil suit was Ontario Police 
Chief Mike Kee and  his concern that Old School was facilitating the 
use of  illegal drugs in the area.

Norris said he then volunteered the resources of his  office to 
assist the city. The goal of the suit, he  said, is to force Miller 
into compliance with Oregon  law. He asserted prominent display of 
the marijuana  leaf symbol in the store, plus the sale of items like 
synthetic urine to help drug users pass drug tests,  marks Old School 
as a drug paraphernalia shop.

"We take into consideration the marketing of the  product," he said, 
pointing out Miller's radio  advertising leaves little doubt as to 
what her products  are to be used for.

Norris said Ontario City Attorney Larry Sullivan will  do the bulk of 
the work preparing the case because of  his expertise in civil law. 
One of Norris' senior  deputy district attorneys, Lung Hung, will 
present the  case in court.

"Larry is a great trial lawyer," Norris said, "But our  deputies here 
have far more trial experience because  they do this every day."

He described Hung as a very experienced trial lawyer.  He said it 
does not really make any difference that  this is a civil suit.

"Trial work is trial work," Norris said. He said  preparing the case 
would be a lengthy process.

Sullivan said a similar case was the civil suit of  Jackson County v. 
Roark, decided against Steve Roark,  owner of North Country Music, in 
late 1993. That case  was also a civil proceeding brought against 
Roark under  Oregon's drug paraphernalia statutes. Civil proceedings 
require only a preponderance of evidence as the burden  of proof, 
instead of the proof beyond a reasonable  doubt required in criminal cases.

Roark argued unsuccessfully that the case had really  been a criminal 
prosecution. The court did not agree  and Roark was fined $10,000, 
the maximum penalty, and  forfeited his inventory. The jury found 
that all of the  items in evidence qualified as drug paraphernalia, 
and actually fined Roark $20,000 because it found him  guilty of 
violating two counts of the statute, but the  county requested that 
penalty be reduced. Jackson  County noted that during the three-month 
period covered  in the suit, Roark had received more than $13,000 
from  the sale of drug paraphernalia.

The decision said selling drug paraphernalia was not  the type of 
interest protected under the state or  federal constitutions.
- ---
MAP posted-by: Jay Bergstrom