LITTLE ROCK — Since February, ordinances in places like Alpena and Conway as well as Crawford, Faulkner and Van Buren counties have outlawed the sale and possession of a chemical compound with a marijuana-like effect on the brain commonly called “K2.”
But neither the state’s most populous county nor its largest city view the compound as a threat.
Tom Carpenter, city attorney for Little Rock, said he asked around City Hall and the Police Department about drafting an ordinance.
“They told me it wasn’t a problem at all and I shouldn’t waste my time,” he said. “Which is fine. I have plenty of other things I need to do.”
The passage of ordinances elsewhere in the state has prompted state legislators and the Arkansas Department of Health to start work on broader, statewide measures, such as a new law listing K2, sometimes called “Spice,” alongside marijuana as a banned substance. K2 has been banned in Kansas, Missouri and Georgia, as well as Holland, Austria, Germany and Switzerland.
Without state or federal laws to regulate K2, local governments are stepping in. And the ordinances they pass raise questions about a gray area of law between state and federal authority to regulate controlled substances and a local government’s right to enact and enforce measures to protect the “health, safety and welfare” of its residents.
While no state or federal law exists that prohibits local governments from banning K2, no law clearly makes it legal to do so, either. No one in the state tracks its sale or use.
K2 was first synthesized in a Clemson University classroom in the summer of 1995 by an undergraduate student studying under organic chemistry research professor John W. Huffman, who studies the properties of the main active component of marijuana. The compound attaches to cannabinoid receptors in the brain - the same ones that respond to marijuana.
“There are no valid, peer reviewed, studies of the effects of this compound in humans, nor are there any data regarding its toxicity,” Huffman wrote in an e-mail. “I emphasize that this compound was not designed to be a super-THC.”
Huffman said he has stopped granting interviews about the compound except in rare circumstances.
“It should absolutely NOT be used as a recreational drug,” he wrote in the e-mail.
HOW BIG A PROBLEM?
Finding quantifiable evidence of the scope of K2 use is difficult, with even places that have enacted ordinances prohibiting the compound unable to detail abuses.
In central Arkansas, that lack of evidence makes K2 of little concern.
Pulaski County sheriff ’s office Lt. Carl Minden said drug investigators in his agency have “no reports, no complaints, no nothing.” And Little Rock Police Department spokesman Lt. Terry Hastings said narcotics detectives “have much bigger things to worry about with cocaine and heroin and meth on the streets.”
Minden said he knew of only one place that sold it: Armadillo’s Hands on Colonel Glenn Road just west of South University Avenue in Little Rock.
“Man, we don’t carry that anymore, stopped selling it,” said Joe Frawley, the shop’s owner for 40 years.
Frawley said he never sold much K2, which is usually added to incense and inhaled through the smoke. But when he saw the movement to ban it elsewhere, he decided it wasn’t worth the hassle.
“It’s because of all the hoopla, man,” Frawley said. “I didn’t want to mess with the stuff anymore.”
But elsewhere in Arkansas, ordinances are multiplying even without evidence of widespread use.
The first local government to ban K2 was the City Council in Alpena, a Boone County town with a population of 371.
Mayor Bobbie Bailey said she first heard about K2 on a news program from Springfield, Mo., that she picked up on her satellite dish.
“I was very concerned,” she said. “I wasn’t hearing that any of the towns up in Missouri had passed any ordinance, and I got to thinking why not.”
Her nephew, Mark Bailey, is Alpena’s part-time police chief. The chief told his aunt that he’d seen it for sale at the town’s Red X convenience store. The chief bought some to test its effects, she said.
“Mark said he tried it, and it worked on him like LSD,” she said.
The city passed its ordinance in February. It defines K2 as a chemical compound with five components. They are only banned together, not separately, the city’s attorney, Jim Goldie said. According to a copy of the ordinance, K2 “may cause hallucinations similar to ‘LSD’” and its sale can result in the revocation of a city-issued business license and a $200 fine per transaction. An individual caught with K2 is subject to a $500 fine for each package.
“The basis of this ordinance wasn’t to turn people into criminals,” Goldie said. “The intent was to say we don’t need this in Alpena.”
In May, Crawford County became Arkansas’ first county to adopt such an ordinance - even though no one could find a place in the county where it was for sale. Violation of the county ordinance carries a one-year jail sentence and a $1,000 fine - the legal maximum sentence a city or county can impose in Arkansas.
The author of Crawford County’s ordinance, Tom Fite Jr., said he supports a statewide ban on K2 but felt he needed to move faster. Fite is a candidate for state representative in District 83.
“I saw where Springdale passed one, and they were good enough to give me a copy,” he said. “Basically our ordinance was a clone of theirs.”
County Judge John Hall, a former state legislator, said the only evidence presented that a ban was necessary wasFite saying so.
“Then it just kind of snowballed,” he said. “The state of Arkansas - the Legislature - needs to be the one to deal with this kind of issue. I support the idea, but this just isn’t the right way to go about it.”
WHOSE JURISDICTION?
There is the open question of whether those ordinances are constitutional.
State Sen. David Johnson, D-Little Rock, said that concern is why he began working with the Arkansas Department of Health to find a permanent solution.
“If there is going to be a law that includes traditional criminal sanctions like prison time, it’s probably best to do that at the state level,” Johnson, a former prosecutor, said. “It’s hard to wait, but this is a process that takes time. You want to be sure it’s done right.”
Allowing the Legislature or the Health Department to act is the more prudent course, said Carpenter, Little Rock’s city attorney. Mark Hayes, general counsel for the Arkansas Municipal League, has advised several cities and counties on legal concerns with their ordinances.
“It’s sort of the perfect legal storm,” he said. “There isn’t very much anywhere in the law that tells us whether we can or can’t do this.”
Then Hayes used the word “probably.”
“What I mean is, I’d feel pretty good about our chances in a court challenge. But I can’t point you to a Supreme Court decision out of Arkansas because there isn’t one.There’s no guarantee.”
Robert Brech, deputy general counsel for the Arkansas Department of Health, noted the presumption that every ordinance or law passed is constitutional until a court decides otherwise.
“Local governments are not superseded in any specific way in the law from doing what they’ve done,” he said.
But because regulating drugs and banning chemicals used to make them has traditionally been a function of the state or federal governments, seeing those cities and counties step in with ordinances that essentially do the same thing is what Brech called an “anomaly.”
“It falls through the cracks in the law, so to speak,” he said.
Third Judicial District Prosecuting Attorney Henry Boyce said that when Randolph County’s Quorum Court asked his opinion on whether it was legal to enact a ban, he didn’t feel qualified to answer.
He asked Arkansas Attorney General Dustin McDaniel for a formal opinion. He got none. Because of the bans already in place and a handful of pending cases where arrests were made, McDaniel declined to offer an opinion in a letter dated June 14.
“So I told them that they wouldn’t be any worse off than anywhere else if there’s a successful court challenge later on,” Boyce said.
Front Section, Pages 1 on 06/28/2010