Middlebury outlaws an otherwise legal tobacco

April 12, 2007
MIDDLEBURY — Middlebury Selectmen on Monday unanimously agreed to issue an emergency health order preventing a local tobacco store from selling the hallucinogenic substance known as Salvia divinorum.
The action, endorsed by Middlebury Health Officer Dr. Robert LaFiandra, came after a Middlebury police investigation alleging that The Emporium Tobacco and Gifts store at 56 College St. had been openly selling Salvia divinorum to children as young as 13.
Salvia divinorum — a cousin of the sage plant that is also known as “Magic Mint,” “Sage of The Seers” and “Purple Sticky Salvia” — is not illegal in the state of Vermont, nor does it appear on the federal Drug Enforcement Administration’s (DEA) schedule of controlled substances. But local officials said Salvia divinorum leaves are increasingly being purchased, and smoked, by young Middlebury teens, who are deriving a hallucinogenic high from the plant.
“I think it’s a significant potential hazard to teens and any others who use it in doses meant to be hallucinatory,” LaFiandra said on Tuesday.
It was late last week that Middlebury School Resource Officer Scott Fisher alerted his colleagues in the Middlebury Police Department to reports that Salvia divinorum was being used increasingly by teen students, who had allegedly been buying the product — complete with directions on how to use it — from The Emporium. Parents reported Internet/e-mail traffic to and from their children revealing stories about the use of the substance and how it was growing in popularity, according to Middlebury Police Chief Tom Hanley.
“We have spoke to a number of young teenagers who have confided they have brought the product (at The Emporium), and they know other teens who have purchased it and shared it with them,” Hanley said.
Smoking Salvia divinorum produces a high of around five to 20 minutes, punctuated by intense hallucinations and dizziness, according to a memo the Vermont Department of Health (DOH) issued on the substance back on Dec. 1, 2006.
Users can also experience nausea, slurred speech, chills and a decreased heart rate as a result of smoking the plant, according to DOH officials.
Police said they proceeded cautiously with their investigation, as Vermont currently has no laws prohibiting the sale or use of Salvia divinorum. While Vermont statutes prohibit the sale and possession of specific hallucinogens, Salvia divinorum is not on that list — at least not yet. Hanley also noted the state does not have child endangerment laws that permit authorities to prosecute storeowners who purvey a legal substance that may be dangerous to minors.
As a result, police decided to take different tack.
“This is not a criminal matter; it’s a health matter,” Hanley said.
Police, at first, recommended that selectmen decline to renew The Emporium’s tobacco license. But town officials decided the evidence did not warrant that course of action.
“There didn’t seem to be a connection,” Middlebury Selectboard Chairman John Tenny said. “We had no information or evidence indicating anything unlawful in (The Emporium’s) handling of tobacco products.”
Since police only recently concluded their investigation, selectmen added The Emporium issue to their Monday agenda on the day of their meeting. Hanley said he tried to reach Emporium owner James Stone by phone to inform him of the meeting. When that failed, he sent Stone a letter.
“I have learned through our investigation that not only are your employees selling (Salvia divinorum) unrestricted over the counter, they are openly selling this to children as young as 13 years of age and providing them oral and printed instructions on how to maximize the intoxicating effects of this drug,” Hanley wrote in his April 9 letter to Stone. “I find this inconsistent with the health and welfare of our children, an irresponsible business practice, and one that we are seeking legal recourse to prevent.”
Stone was unaware of the controversy and emergency health order when the Addison Independent reached him at his store on Tuesday morning.
“I’m very disappointed they couldn’t have notified me beforehand to hear my side of the story,” said Stone, who added he doesn’t believe his employees have ever sold Salvia divinorum to anyone as young as 13.
“If they had had a concern, I’m a reasonable person; I would’ve pulled it,” he said of the substance.
Stone has operated The Emporium in Middlebury for almost a year. He has a store of the same name in Rutland, and recently closed another store in Vergennes.
He said he has not encountered any problems with the sale of Salvia divinorum at his Rutland store.
Stone will have a chance to plead his case at a hearing before the town’s board of health — which also happens to be the selectboard — within five days of receiving the emergency health order. LaFiandra said he expected the order to be given to Stone this week.
After listening to testimony from the health officer, police and Stone, the board of health will stand by its order; amend it; or cancel it.
Tenny said the town could also consider an ordinance banning the sale of Salvia divinorum in Middlebury. Local legislators — some of whom were present at Monday’s meeting — may also urge action at the state level. Thus far, the states of Delaware, Missouri, Louisiana, Tennessee and Oklahoma have either banned or regulated the sale/use of Salvia divinorum. Alaska, Illinois, New Jersey, New York, Oregon, Pennsylvania and Wyoming have in the past considered legislation targeting the substance.
“I don’t care if it’s legal or not; it’s wrong to market this product to teens,” said Selectman Craig Bingham.

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