As New York legalizes marijuana, Port Chester bans paraphernalia

By John Donegan

This story originally appeared in the 4/2/21 edition of the Westmore News. For the original article, follow the link.

Every Monday morning, Michael DiFazio heads to his smoke shop, The Glass Room II, to check inventory and place orders for the week. The store, one of three that he runs, sits tucked along Port Chester’s North Main Street next to several boutiques, salons, and more recently, scaffolds.

“This isn’t the prettiest town, unfortunately,” DiFazio said. “It’s not an uppity town, if that is what they are trying to make it.”

Either side of North Main Street is teeming with construction, part of a new vision for the Village that came about well after DiFazio first brought his business to Port Chester. He sees the development as the municipality trying to improve its image and build appeal. But after the passing of a new law last month by the Board of Trustees, DiFazio knows that vision doesn’t include stores like his and is looking to close his shop for good.

The Village code amendment bans the display and sale of drug paraphernalia, including anything used for the storage, use and cultivation of illicit substances. Tobacco paraphernalia, popularly used for smoking cannabis, encompasses at least 70 percent of his business. And since the start of the pandemic, the stores sees, on a good day, 20 customers.

DiFazio has never seen or met anyone on the board, yet with a flick of their pen his livelihood is in jeopardy.

“Why they want to shut down more businesses right now, especially family owned, at a time like this, is crazy and they should be ashamed of themselves,” DiFazio said. “This is how I feed my family…but they don’t care, they only care about their appearance.”

Penalties under the new law are steep and operate on three tiers. First-time offenders could receive a fine of up to $700 and potentially face up to 15 days in jail; second timers are subject to a fine between $700-$1,400 and up to one year in jail. And for third-time offenders and every time thereafter, they face a $1,400-$2,000 fine and up to a year in prison. New York State fines, meanwhile, for marijuana possession are currently $50 for under an ounce and $100 for between one and two ounces.

The law does include several arbitrary tenets. Technically, any item that can be used to grow, sell, store, or consume cannabis or any other drug can elicit a violation. Whether any set of potting tools constitutes as paraphernalia is ultimately up to the code enforcement department to decide. According to the written law, code enforcement will be responsible enforcing its compliance. However, Alex Payan, the Port Chester trustee who spearheaded the legislation, said the Port Chester police would also be responsible for enforcement.

The bill also ropes all paraphernalia into the same school, incurring the same penalty for the sale of an $80 water pipe as a $1.25 “love rose” or “methoscope,” typically found in convenience stores.

Though the ban passed after the second public hearing for the law on Feb. 16, it was not a unanimous decision. The board voted 4-3—with Trustees Payan, Bart Didden, Frank Ferrara and Mayor Richard Falanka in favor and Trustees Dan Brakewood, Joan Grangenois-Thomas and Luis Marino against—after a storm of public testimonies at the first public hearing on Feb. 1 swayed them to postpone and request changes to the bill’s language.

DiFazio and Payan sit on opposite ends of this debate but carry the same reasoning behind their position: the Village needs to change with the times.

“I think they’re moving backwards,” DiFazio said in an interview on Monday, Mar. 29. “They’re not moving with the times and it’s very strange to me why they would want to do this when legalization of marijuana is just around the corner.”

“You have to change with the times, you have to innovate,” Payan said.

Times have changed

On Wednesday, Mar. 31, New York did change with the times, when Governor Andrew Cuomo signed a bill to officially legalize cannabis. Cuomo originally pushed to bring legal weed to New York in 2019, but was unable to make it happen, citing how the legislature did not have enough time to draft the bill and holdouts from Westchester and parts of Long Island were complicating the process.

One issue that arose during the Feb. 16 public hearing on the Port Chester drug paraphernalia ban was whether the code would be amended to reflect state law if cannabis were legalized, as it was. Technically, with the law in effect, DiFazio’s merchandise may not even count as paraphernalia. Still, that does not mean the board will lift the ban. Rather, the trustees seemed more willing to push it out and amend it later.

“If they legalize marijuana in six months or a year, how does that affect this law?” Trustee Dan Brakewood asked at the Feb. 16 meeting minutes before the vote. “And we shouldn’t be fooling ourselves; most of this stuff is available on Amazon and will be at our house the next day.”

“Well, we won’t know until we see the legislation that will probably get put up by the governor later this year,” Village Attorney Anthony Cerreto replied. “We’ll have to review it and react to it.”

Trustee Bart Didden acknowledged that he’d be willing to amend the bill once legalization goes into effect to allow the sale of cannabis paraphernalia in dispensaries, stating: “that’s where this stuff belongs, where you can buy the product that the items are used for.”

When marijuana dispensary entrepreneurs start applying for permits to sell, Payan did not say he would oppose their business in the village.

“We’ll cross that bridge once we get there,” he remarked on Wednesday, Mar. 24. “It’s hard to speculate what will be the minutia of this legislation, but we’ll be ready for that.”

Payan was not available for comment on the recent legalization but insisted in a previous conversation that he does not think smoking weed is a morally compromising act.

“This is our way to help prevent our children and adults from having access to and use of drug paraphernalia for making, getting, or using drugs,” Payan said. “For me, it’s very important in recognizing drug paraphernalia can be the first step in addressing someone’s addiction.”

That said, Payan did describe a culture around marijuana that perpetuates drug abuse.

“You can also analyze the music genre of reggaeton, where a lot of these singers use these apparatuses,” he said. “And for a teenager, you want to fit in, and this is the cool thing to do without knowing the consequences of it but it’s just like, everyone is doing it.”

DiFazio doesn’t necessarily agree with the age old “stoner” stereotypes.

“I have lawyers coming in here shopping; I have doctors coming in here shopping—all walks of life coming into this store, not just a specific group,” he said. “And on top of that, marijuana is literally becoming legal, right around the corner—probably this week.”

The first draft and the precedent of ‘use’

At the first hearing on Feb. 1, the ban proposal did receive some positive feedback, but it was more so on its ability to combat the use of harder drugs—a concept that largely took a backseat during the meetings.

“Coke pipes, sold in the local stores of Port Chester, need to be stopped,” said Charles Morgan, director of the Port Chester Youth Bureau. “These are being sold for a profit at the cost of the lives of Black and Brown youth.”

In the original proposal, the law included banning the sales, display and use of drug paraphernalia within the Village of Port Chester. This drew criticism from local activists who said the bill echoed some of the same moral sentiments as War on Drugs laws, such as the 1986 Anti-Drug Abuse Act and three strikes law, which historically were implemented to target people of color.

Statewide, Black and Latino New Yorkers make up 75 percent of all arrests, violations and stops.

“I think it’s vitally important that people not be misinterpreting or there be unintended consequences. I don’t want to turn code enforcement into drug enforcement; I think that would be very dangerous,” Brakewood said. “So, if I have it sitting on my windowsill, as another person, am I displaying it?”

According to Cerreto, the law is based on the existing laws in Mount Kisco and Westchester County. He insisted during the initial hearing those governments haven’t had major issues.

“Indirectly, we’re trying to get at the use of controlled substances, but it goes after the sale and display. So, it would be directed to those people who are actually selling and displaying these controlled substances. It’s not intended to rouse people up in their homes, go through locked doors, and violate the Fourth Amendment,” Cerreto said. “That’s an overstatement, if not a misstatement.”

The New Guard, a Port Chester advocacy group, illustrated the paraphernalia ban as another instrument of systemic oppression that will negatively affect communities of color, all the while hiding under the guise of a false crusade for the youth.

“I am absolutely against this law; it is fascist, it is classist and Alex Payan—you should really be ashamed of yourself,” Kiah Thomas, a member of The New Guard, said on the virtual meeting. “The punishments within this law undo years of progress towards equity within our state and village.”

During the Feb. 1 public hearing, The New Guard submitted a petition of 500 signatures they said they accrued in under two days. And at the second meeting, even after the village attorney removed the word “use” from the bill, New Guard members insisted that the bill is morally intrusive, a precursor to further restrictions and a tone-deaf stance on the eve of statewide cannabis legalization.

“I think we should stop the momentum on this issue,” said Zeltzyn Sanchez, a member of The New Guard, at the second hearing. “I’ve lived in Port Chester most of my life, I went through the DARE program and a couple of the programs that Port Chester Cares actually offers, and I can tell you that all of those things don’t work—the DARE program, the pamphlets with fear mongering, they haven’t worked. I remember accurately that Port Chester Cares actually distributed a pamphlet a while ago that said ‘smoking weed makes you fat.’ What kind of education is that?”

Payan was the director of Port Chester Cares from its inception in May 2013 until the grant supporting the program ended in September 2018. Payan said the core of PCC was to “home in on” alcohol and cigarette usage, at least at first. Towards the end, the focus shifted to controlled substances, namely marijuana. The grant provided funds for advertisements, including billboards and flyers in community centers, on the “effects of marijuana.”

“I’m really disappointed that Alex Payan thinks he represents our community,” Sanchez added. “You don’t. You really don’t. And to say that 500 people is just a small percentage—500 people went out of their way to try and figure out what this law is trying to say. How many people did you reach out to?”

Payan and other agreeing board members pointed to Port Chester’s history as a watershed for the affluent neighboring communities, who have been drawn to town in the past for later bar hours. Payan said he no longer wants Port Chester to be this outlet that attracts others to come and partake in seedier activities. The village banned tattoo parlors in 2015 and talk arose to ban flavored vape pens before the state banned them in 2019.

“It’s not a silver bullet, but it’s one way to keep our children safe,” Payan said. “I do believe that removing (paraphernalia) from clear sight will help tremendously. You know, we’re visual learners. It’s the same rationale here that you see with types of advertising that are eye catching and colorful.”

For now, the Glass Room II is still open. It is easy to miss the shop when walking past; scaffolding makes a tunnel of the sidewalk outside. And despite Payan’s warning to the board that bodegas and smoke shops use colorful and bombastic advertising, DiFazio keeps his signage to a minimum. Of the five signs plastered on the front windowpanes, two are for store hours, one is an old schedule for The Capitol Theatre, and one markets a non-flavored vape pen.

“Our advertisement is word of mouth; I don’t advertise anywhere,” DiFazio said. “If they are going to say all that, they should get their facts straight first.”

Still waiting on approval from the state, the Village has not released a rollout plan for the ban. DiFazio knows he is going to be forced to close his shop but is worried that the Village will not give him proper notice of the ban or time to stow all his merchandise.

Even then, he is still in a year-long lease that he will have to break. DiFazio invited Payan to come to his store and tell him personally about why he’s pushed so hard for this ban. Using colorful language, he said he has strong thoughts he’d like to share with the trustee:

“I hope one day you get to experience your livelihood, your way to make money, way to put food on the table for your family, is put in someone else’s hands like yourself.”

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