(CN) - A Minnesota business owner charged with distributing misbranded drugs cannot block a city law concerning synthetic drugs, a federal judge ruled.
James Robert Carlson is president of a Duluth, Minn., shop called Last Place on Earth, which "sells a wide variety of merchandise, including tobacco products, T-shirts, novelties and adult DVDs," according to the ruling.
In June 2013, Duluth enacted Ordinance No. 10231 to license "synthetic drug establishments."
Carlson - who was recently indicted on charges of distributing misbranded drugs, distribution, and possession of controlled substance and distribution of controlled substance analogues - challenged the law as facially unconstitutional. He said the licensing application requires him to admit to violating the very federal statutes for which he now stands indicted, thus incriminating himself in violation of the Fifth Amendment.
U.S. Magistrate Judge Leo Brisbois said the court should deny Carlson a preliminary injunction, and Chief U.S. District Judge Michael Davis adopted the recommendation Thursday.
"Contrary to plaintiff's assertions, Magistrate Judge Brisbois found that the mere act of applying for a license does not necessarily furnish a link in the chain of evidence needed to prosecute someone under federal criminal law," Brisbois wrote. "This court agrees."
Carlson had claimed that the "definition of 'synthetic drug' incorporates two-thirds of what is necessary to convict him under the controlled substances analogue statute," according to the ruling.
He said that "the act of applying for a license under Ordinance No. 10231 is self-incriminatory because it would necessarily remove him from one of the exemptions contained in the controlled substances analogue statute," the judge added.
Davis found that Carlson had incorrectly concluded that the ordinance "applies to any substance a person may reasonably believe is a synthetic drug, or to a substance a person may reasonably believe is being purchased or sold as a synthetic drug, without regard to the actual chemical structure of the substance. Under this broad definition, it does not necessarily follow that a business required to file a license under Ordinance No. 10231 is offering a synthetic drug that falls within the definition of controlled substance analogue."
Judge Davis also concluded that Carlson would not suffer irreparable harm if he was forced to abide by the ordinance and obtain a license for his shop.
Citing the 1973 Supreme Court decision Lefkowitz v. Turley
, among other precedent, Carlson had said "the government may not impose financial penalties upon an individual by virtue of his exercise of his rights under the Fifth Amendment," according to the ruling.
But Davis said the ordinance "includes no language compelling a person who seeks a license thereunder to appear or testify in any proceeding, nor does it impose any sanction capable of forcing self-incrimination. Accordingly, Magistrate Judge Brisbois did not err in finding that Turley
and progeny are inapposite to plaintiff's facial challenge."