MIDDLEBURY — The town of Middlebury and a former storeowner have settled a longstanding legal dispute relating to local sales of the herb salvia divinorum.
Middlebury has agreed to withdraw a 2007 emergency health order barring the now-defunct Emporium Tobacco and Gift Shop from selling salvia. At the same time, former Emporium storeowner James Stone has agreed to drop his Vermont Supreme Court action against the town in connection with that 2007 order.
Middlebury selectboard Chairman John Tenny said the town elected to settle the case in part out of uncertainty about how the state’s highest court might rule.
A lower court had held that the town’s health officer was immune from prosecution.
“Our attorney (Jim Carroll) had argued that we had been able to make our point, and we were able to stop the sale (of salvia),” Tenny said.
It was on April 9, 2007, that Middlebury Health Officer Dr. Robert LaFiandra issued an emergency health order that prohibited sales of salvia divinorum at Stone’s College Street shop. A local police investigation had revealed that local children as young as 13 had been able to purchase the herb at the Emporium.
Middlebury authorities moved to prohibit sale of salvia divinorum for public health reasons, after several children and parents on April 7 reported increasing use of the substance by local juveniles.
Salvia is not restricted by the controlled substances laws of either Vermont or the federal government.
The American Civil Liberties Union of Vermont filed suit last year on Stone’s behalf. The ACLU argued, among other things, that regulating food or drugs was not within the purview of a local government.
Only state or federal officials can regulate the sale of otherwise legal substances, ACLU-VT cooperating attorney Roger Kohn of Hinesburg argued. ACLU-VT Executive Director Allen Gilbert said he believes the settlement is a vindication of that claim.
“We believe we made it clear to the town that they can’t do this,” he said. “It’s our position that people just can’t make up their own rules, town by town.”
Kohn said his client is satisfied with the settlement, which ends a potentially lengthy and costly legal route. Stone continues to operate a store in Rutland that carries the herb.
“He didn’t want this hanging over his head,” Kohn said of his client.
Tenny said the town reserves the right to issue a similar health order should another vendor try to sell salvia in Middlebury.
“We really took the direction here that was the most pragmatic … in protecting the town against a potential liability, and we did not prevent ourselves from protecting the town in the future,” Tenny said.
Kohn said the ACLU stands at the ready should Middlebury elect to issue a similar order against salvia in the future.
“We hope the town has learned that communities can’t, on a town-by-town basis, outlaw substances that are otherwise legal in Vermont,” Kohn said.
Reporter John Flowers is at [email protected].