EHB 2772: Washington's anti-paraphernalia law
On April 3, Governor Gary Locke signed Engrossed House Bill 2772 into law. The law, which takes effect on June 11, 1998, states that "Every person who sells or gives, or permits to be sold or given to any person any drug paraphernalia in any form commits a class I civil infraction under chapter 7.80 RCW." Drug paraphernalia, as defined by EHB 2772, "includes, but is not limited to objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marihuana, cocaine, hashish, or hashish oil into the human body..."
Under current law, it is a misdemeanor to deliver drug paraphernalia knowing that it will be used to produce or use illegal drugs. Smoke shops could sell pipes and bongs because they are said to be for tobacco use only. For shops to violate the law, the state must prove that they knew the merchandise would be used to produce or use illegal drugs. Police say that proving what someone knew is virtually impossible, so it's virtually impossible to prosecute someone for selling a "tobacco bong." By creating a civil infraction, 2772 circumvents that burden of proof.
Civil infractions differ from criminal offenses in that a civil infraction requires no proof of commission and anyone receiving an infraction is deemed guilty unless they choose to contest it. With criminal offenses, a person must be charged with the crime and the state must prove their guilt.
By making the transfer of drug paraphernalia a civil infraction instead of a misdemeanor, police now have the authority to ticket retailers without proving they knew the merchandise would be used for illegal drugs. Because it is a class I infraction, smoke shops can be fined up to $250 for every pipe sale.
Why 2772?
On Monday, December 8, a smoke shop, Silk & Smoke opened its doors in the South Hill area of Puyallup. The store sold an assortment of cigarettes, pipes, t-shirts, hats, jewelry and other trinkets. By Wednesday, angry citizens were picketing the store, carrying signs with slogans such as "Silk & Smoke Profits From Dope" and "Parent Alert: Drugs & Perverts."
Senator Cal Goings (D-25) was one of those protesters. On January 20, Goings, along with eight cosponsors, introduced Senate Bill 6510, which would prohibit "selling or giving drug paraphernalia to persons under age eighteen." On that same date, Representative Joyce McDonald (R-25) and Representative Jim Kastama (D-25) introduced House Bill 2772. The original draft amended current law to make it illegal to deliver drug paraphernalia even if the person didn't know it would be used for controlled substances.
SB 6510 didn't make it out of the Senate before the cut-off date. On February 13, HB 2772 was amended and passed by the House 94-4. The senate amended the bill to apply only to people who sell or give suspected paraphernalia to minors. The bill passed 45-1 and went back to the House. The House refused to concur with the amendments, and asked the Senate to recede from them. On March 10, the Senate receded from the amendments and passed the bill 39-9.
A Stealth Bill?
The passage of EHB 2772 left many hemp and marijuana activists wondering how such legislation could pass without any opponents knowing of its existence. A short legislative session lasts 60 days, and in that time, thousands of bills can be introduced. It's impossible for a legislator to look over every one of them. They may not see a specific bill until it's up for a vote.
"You have to rely to some degree that people are going to come and talk to you about it and nobody did with this bill," said Senator Jeanne Kohl (D-36), who opposed the bill.
Under EHB 2772, a store could be fined for selling household items such as clothespins or paper clips. However, most people believe it will be a selectively enforced law, something used to weed out undesirable retailers from a community. On June 11, when the law goes into effect, the Silk & Smoke in Puyallup, the smoke shop this law was created for, will most likely be the first target.