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New Grow House Laws Snare Innocents in Florida

New Florida Grow House Laws Snare Innocent Families in Florida

By Norm Kent

January 15, 2009

On July 1st of 2008, Florida enacted a new law which enhanced penalties for marijuana grow houses. Authorities heralded it as the ‘Marijuana Grow House Eradication Act.’ It is just another excuse to lock decent people up for longer times.

There are some provisions of the act which bring back the dark days of the draconian Rockefeller drug laws in New York, legislation which sent small marijuana growers to jail for thirty years. Some might first be getting out today.

Law enforcement argued that they needed the new law because of the increasing number of grow houses operating in the state and violent crime which tend to be associated with these operations. Sure they did.

“Grow houses are not only furthering this dangerous drug trade within our state, they are bringing violent crime into our neighborhoods,” said Attorney General McCollum. “This new law will help protect our families and communities.” No, it won’t.

There was no accompanying empirical or independent study or statistical backup to lend truth to the public statements of Mr. McCollum. Nor was there any journalist anywhere in the state that took him to task or asked for documentation to sustain his claims. They just regurgitated and repeated the pablum they were fed by law enforcement.

The new law makes it a second-degree felony to grow 25 or more plants, no matter how small or large those plants are. Baby seedlings or mature daddies, 25 plants can get you 15 years. It used to take 300 plants to reach that harsh a penalty. Put it in perspective. If you lived in California, and you were given a medical marijuana card, you would be allowed to grow up to six plants of your own. Thus, if the cast of Real World was growing its own medicine in San Francisco they could film some great episodes. If they were doing it in St. Pete, Florida, they could be doing those episodes for the next 25 years from the State Penitentiary.

The Florida law also changed to make it a first-degree felony to grow 25 or more plants in a home with children present. That penalty is now 30 years. Already, I am representing a 50 year old gentleman, who was a schoolteacher in Miami for 20 years; who retired because of a disability. He grew his own pot in an outdoor shed behind the garage, apart from his children, used it for himself, and knew nothing about the law. He is now facing the rest of his life in jail.

“Marijuana is the most commonly used illegal drug in America and we must take a stand against the for-profit growers who were previously exploiting higher thresholds,” said one of the bill’s sponsors. “By lowering the number of plants necessary for criminal charges, we’ve given Florida’s authorities valuable tools in the fight against these criminal operations,” he foolishly added. No, they have not given law enforcement any more tools. They have just given decent people longer sentences for essentially innocent conduct.

Many of the larger grow houses I have seen over the past 30 years as a criminal defense lawyer are truly marijuana cultivation operations designed solely for entrepreneurial reasons and major marketing. Exclusive homes in gated communities worth hundreds of thousands of dollars have been rented, sealed, and converted into home grown hydroponic laboratories.

When they are inadvertently discovered, law enforcement makes an entry only to find no one lives there, and the place was being used to solely grow pot which would be commercially marketed for a profit. If pot is going to be against the law, you can understand that type of operation being targeted. Greedy people violating the law go to jail.

The new law enhances penalties. The difference in changing the law is significant, because what the legislature has done is gone from targeting entrepreneurial operations to including individuals simply trying to cultivate their own medicine. The less you grow, the more you are likely to now face a greater penalty.

Two of the individuals I currently represent are domestic partners who purposely started a grow house in their backyard exclusively because, at the age of 45, they did not “want to go purchasing pot on the streets in their car during the dark of night.” My client said they thought this was the smart and safest way not to commit a crime, but to “tend to their own garden.” And the price they pay for a safer way to acquire pot is a speedier way to go to jail for a longer time.

Another individual I represent who was growing pot is an artist. He and his wife have two children. They are painters. They paint, they smoke, they raise their children. At six a.m. one morning last summer, agents from the Drug Enforcement Agency knocked on their door to say they were investigating grow houses.

Separating wife and husband, they argued they smelled pot and had a right to enter. They warned the couple that “if they did not cooperate,” they would have to take their children to the local family services agency, the typical bureaucratic disaster in this city that it is in your own. They reminded them that under the new law they could lose their children and face 30 years in prison. The couple had no guns, ran no gangs, and committed no violent acts. They grew some weed to fulfill a passion they had engaged for 20 years. These are the types of people these new laws target.

In this operation, the one law enforcement authorities bragged about as Operation D Day, sixteen agencies combined on one single day in Florida to bust 150 grow houses which would have netted purportedly $41 million worth of marijuana plants. I guess we will never know now. Overall, on that day, April 28, over 9,000 plants were seized and 135 arrests were made throughout the state.

A review of the county wide press releases said very little about finding any guns, weapons, AK-47s, or rifles. About ten guns were found in South Florida, and a bullet proof vest. If you were Noel Llorente, you might have needed one.

Mr. Llorente, you see, lives in Opa-Locka with his wife, Isabel. He was leaving for work when unmarked cars pulled up, DEA agents jumped out, yanked him out of his vehicle, threw him down with guns drawn, handcuffed him, and then stormed into his home searching for drugs, smashing in the front door along the way. Panicked, Isabel tried to call 911. Agents grabbed the phone from her. A few minutes later, agents realized they were in the wrong house. Whoops!

“Sorry, they told me, Sorry,” Noel Llorente said. Then the agents went on their way. “So it goes,” said the Little Prince, “so it goes.”

Marijuana is, of course, against the law in Florida. The agencies had a right to make the arrests, conduct the seizures, and raid the grow houses. They were doing their job enforcing the law. We cannot castigate them for doing their duty. We can condemn, censure and criticize the legislators who enhanced the penalties for the acts, instead of adjusting the laws to respond to the practical realities of marijuana use.

Authorities correctly point out there is an emerging trend that identifies an increasing number of indoor cannabis operations statewide. One law enforcement officer said that the number is growing exponentially, at a rate they will never catch up to. Well, does that also not say to those same agents of justice that people see their prosecution as an injustice? If so many are defying the law, should we not be reducing the penalties rather than enhancing them?

I understand that law enforcement correctly stated that many ‘Cuban nationals’ were arrested in this operation, intimating that it is all part of a foreign conspiracy.
I understand too, that each county sheriff talked about how some of these major grow houses have led to more serious crimes.

I understand also that if Floridians were allowed to grow their own plants in their own backyards without the threat of law enforcement breaking in their doors and taking away their children there would be no need for Cuban nationals or terrorism.
Finally, I understand how the terrible law terrifies the decent citizen and creates the very terrorism the government seeks to end. There is a very simple way to end the problems these law enforcement officers want to cease. Legalize the pot they criminalize. Medicalize it as over a dozen states have now done.

Thomas Jefferson once said that “That government which governs least governs best.” And like his friend, George Washington, not to shabby an American himself, Thomas Jefferson was a hemp farmer.

Maybe America today needs more cultivators and more grow houses, not less. Maybe like the patriots who threw tea off a British ship in a Boston harbor, the families who have grow houses in their backyards are today’s revolutionaries. Maybe tomorrow, history will prove them right.

Who knows, if I am right, maybe someday someone will make a TV show about it and call it ‘Weeds’. Then the show will win awards, people will laugh at it, and we will all look up and say how stupid these laws were. After all, families who grow together, grow together.

Norm Kent is a Fort Lauderdale criminal defense and constitutional rights attorney who can be reached at Norm@normkent.com. A member of the Board of Directors of NORML (www.norml.com), Norm also blogs publicly about legal issues at www.kentvent.blogspot.com

Bloggers Have A Right to Anonymity

Courts Are Beginning to Address Anonymity of Bloggers

January 10, 2009

By Norm Kent


In New York City last week, a Vogue model made headlines not by being on the cover of a new magazine but by being referred to as a ‘skank’ on a rather inconsequential and insignificant blog.

The model, Liskula Cohen, has now filed a lawsuit against Google and its Blogger.com website, seeking the identity of the anonymous blogger.

Although the entire blog was generated on a single day and it contains a total of solely five posts, the blog entries refer to the model derogatorily as a "ho," a “#1 skanky superstar,” and otherwise depict her as sexually promiscuous, dishonest, and unclean.

Because the site is hosted through Google's Blogger service, Cohen is asking the court to order Google to disclose identifying information including the blogger's name, address, telephone number and email.

As a policy matter, Google does not reveal bloggers' identities without a court order. "We take great care to respect privacy concerns and will only provide information about a user in response to a subpoena or other court order," a spokesperson said.

On January 5, the court issued an "order to show cause," which requires Google to appear before the court on January 26 for arguments about whether disclosure of the blogger's identity should be ordered.

New York attorney Steven Wagner represents Cohen, who in the past appeared on the cover of Australian Vogue. He alleges in the complaint that the blog posting is defamatory, libelous, and costing his client possible employment.

Wagner acknowledged that it is no easy legal task to identify bloggers who lob insults anonymously, but re-asserted his position that the publications were defamatory “and you shouldn’t just get away with this.”

If Mr. Wagner were practicing in South Florida and reading the JAABLOG, he could find work very quickly. But he would have a tough legal road ahead of him.

While Florida has no uniform standard to go by, courts around the country apply at least a two-pronged test before requiring the release of the name of a blogger, if it can even be found. First, the Plaintiff has to show that the blogger’s remarks are defamatory. For a statement to be defamatory, it first must be false, and then it has to expose a person to ridicule, contempt, or injure him in his business or trade.

Second, once the plaintiff establishes defamation, the court then balances the strength of his underlying legal claim and the need for disclosure against the strength of the blogger's claim to First Amendment protection. Courts have recognized that the right to speak anonymously is a fundamental part of the First Amendment right to free speech, and accordingly some level of scrutiny is required before stripping an anonymous Internet speaker of that right. It is a tough road to hoe; a high burden to meet.

When considering a subpoena or other discovery request seeking to unmask a speaker, courts have to balance these two competing rights. But courts have struck the balance in different ways, and the result is a number of different legal tests for deciding whether or not to allow a blogger/speaker's identity to be revealed. These tests or standards can be placed into roughly two categories: (1) high-burden tests and (2) low-burden tests.

Every state is of course different, but most are leaning towards protecting the rights of anonymous bloggers. Many states are mandating a high burden for the Plaintiffs, and appropriately protecting bloggers rights. You can read more about this at the Electronic Frontier Foundation website.

Florida has few cases on point thus far. As you can see from the New York suit, it does not require a blog as prolific as JAABLOG to initiate an action. If defamation is alleged, the legal issue to be determined is whether a blog could be judicially directed to turn over to a court the ISP addresses of anonymous authors if subpoenaed. The answer is yes, it could happen, but there are many hurdles to climb. That is the situation facing Google in New York today. They will fight the subpoena, as we would do here.

A factor that might affect what test or standard applies is the character of the speech activity over which you are sued. Some lawsuits clearly implicate important First Amendment concerns -- criticism of public officials or government policies, whistleblower activities, to name a few. That would seem to protect the bulk of the communications on this JAABLOG.

I think you can reasonably predict that a court is more likely to apply a high-burden standard when "core" First Amendment values are involved, and less likely to do so when the issues appear personal or otherwise unrelated to matters of public concern.

I think that the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, I believe an author's decision to remain anonymous is an aspect of the freedom of speech protected by the First Amendment. Nevertheless, when you are significantly causing harm to another, courts will have to weigh your right to anonymity versus the purported victim’s right to redress his grievances.

I have always been persuaded that courage is standing up and identifying yourself, not cowering in a closet. As a person, you grow and mature by the adversities you engage. I would defend a blogger’s right to do so anonymously, but I would never want to be in that position myself.

According to the nonprofit Media Law Resource Center, there have been over 150 documented civil court actions involving bloggers. At least seven cases have resulted in verdicts against bloggers, with cumulative penalties totaling $18.5 million. But I would not lose sleep over this. The Internet is growing exponentially every moment, with thousands of new blogs getting created on the Internet every day.
By the way, the blog itself is not liable for the libel. Federal laws protect it. While newspapers can still be sued for the residual publications of libel, blog sites such as these are shielded under the Communications and Decency Act, specifically Section 230.

Still, if you blog frequently and loosely, make an effort to understand liability. There are limits. It’s kind of like the speedometer on your car. Just because the odometer goes up to 180 mph does not mean you should always drive your car down Broward Boulevard at that speed.

Exercise a little discretion and caution and you will further your rights to post anonymously and induce courts to continue to protect them. What you learn today might protect you from a lawsuit tomorrow. Besides, it might protect me from having to go to court to defend your first amendment right to be a jerk. You have that right, and let’s face it, many of you use it.!

Maxims for the New Year

Rules and Maxims for the New Year

by Norm Kent

1. Auto industry executives have joined baseball players as the most overpaid professionals in the world. Just as I am sure that there are some fantasy league l general managers who could run teams better than baseball executives, I bet there are a lot of auto dealers who have been selling cars for the past 30 years that could have done a lot better than those big shots in Detroit did.

2. Our government can’t fight a war, clean up after a hurricane, or regulate a single industry. We don’t just need term limits for politicians, we need SAT tests.

3. The kid you played stickball with in a schoolyard when you were six years old may grow up to be a crook at 50. Every era in American history has been poisoned by corrupt thieves who made off with a fortune while you paid the price.

4. Anyone who smokes may not deserve to get cancer but they sure do not deserve money from jurors for getting sick. You don’t need labels to tell you to stop smoking.

5. If Barney wants to marry Bill and live together in Wilton Manors, no straight couple in Tallahassee has a right to vote on an amendment saying they cannot.

6. Speaking of which, one of the rights the justices ruling on the constitution have forgotten to protect in the past two hundred years is the ‘pursuit of happiness.. .’

7. If pot is so bad, how come more Americans died last year from ice cream cones and spinach?

9. The only time in the last eight years our Vice President was on target was when he shot his lawyer friend while hunting.

10. There is no question that George Bush was loyal to Laura, but when you look at what a mess the country is in maybe he should have taken some pointers from Bill Clinton and screwed around a little more.

11. Rush Limbaugh belongs in jail for trafficking in oxycontin, not on the air trafficking in hate.

12. I do not care how many times Brittany Spears goes into rehab, and Hulk Hogan’s family or Anna Nicole Smith’s should not be your role models. Try your mom instead.

13. I don’t care if he was a Vietnam war vet, I do not need to feel sympathy for a 60 year old man who says he is homeless because of post traumatic stress disorder from a war forty years ago. Get over it. Move on.

14. In real life, all crime is not solved in 48 minutes like you see on ‘Law and Order’ and ‘CSI’. Sometimes bad things happen to good people and bad people go free and the good unfairly suffer.

15. When everyone in your world has abandoned or left you, your family will be by your side to ridicule you, laugh at you, and say ‘I told you so.’

16. Alexander the Great conquered half the world by the time he was 21, and he did not have a cel phone.

17. I still have a lover’s quarrel with the world, but I can no longer see that world without reading glasses. I am not sure the golden years are golden. I think they are more like the beginning of the end. Make sure you enjoy the ride while you can.

18. If all the politicians in America are too stupid to figure out a way to provide health care for every American, can we at least devise a method to take care of every kid?

19. If you have to perform under the name of Lady Ga Ga this year, no one will know who you are in 10 years.

20. Laugh more. Eat less. Drink Coca Cola. Drive Safe. Save the Earth. Don’t expect to win the Lottery and avoid the inane, banal hosts who infest the air waves on New Year’s Eve.

21. One final thought for the start of the year. You love your dog. He loves you. I saw this plaque: Try to live your life being the kind of person he thinks you are.

GOP: Leadership Not So Grand

GOP Leaders Open Mouths and Shoot Feet

By Norm Kent

December 29, 2008

I thought Republicans were intellectually challenged and diversity impaired, but this moron who is running for the head of the RNC takes the cake.

As the story unfolds, astonishingly, Chip Saltsman a candidate to run the Republican National Committee has sent out a Christmas letter seeking support for his candidacy. In an effort to be humorous, he included a recording of a parody of the famous Peter Yarrow song, ‘Puff, the Magic Dragon.’ If you have not heard it, the song is a children’s favorite, a staple of ‘60’s activists, and a loving cute ode to peace and tranquility.

The parody does to this song what a pornographic artist once did to a painting of Disney characters. It is satire, to be sure, and lawfully protected under first amendment doctrines that shield parodies. Legally, it is defensible. But I want to talk about it artistically. Forget that I think it may be in poor taste, it is just outright poor. It is a pathetic parody with lousy lyrics, bad singing, and crappy timing. It is artistically abominable.

In this day and age, it is also a poor political move for a leading Republican to initiate. The current chair of the party admitted as much. Mike Duncan, has issued a statement saying he is "shocked and appalled" that Saltsman could have thought this was appropriate.

"The 2008 election was a wake-up call for Republicans to reach out and bring more people into our party. I am shocked and appalled that anyone would think this is appropriate as it clearly does not move us in the right direction.”

The author of the song, Peter Yarrow was also disappointed by the use, stating that he and his co author, Lenny Lipton found the satirical conversion of ‘Puff’ “vulgar and a mean spirited slur,” and those were the nice things he said.

This is a good time to point out we live in a world of hypersensitivity and overreaction. The response to the ‘Puff’ song has been both. But somewhere, somehow, I just wish someone would say: “Hey, this song is not only not funny, this is just plain bad.” Okay, I will be the first. The song stinks. It is not only not funny; the rendition is just plain bad. Make it go away, if not for political insensitivity, at least for artistic sensibility.

First played on the Rush Limbaugh show, the Barack track is part of a lengthier CD created by conservative satirist Paul Shanklin. I know he has done a few songs about liberals. I wonder if he has done any about Rush’s drug habit. That of course might not be satire. That would be truth. In fact, I am still amazed how I have clients in Florida who have gone to jail for years with the kind of oxycontin habit Rush had. Don’t think Shanklin has got to do that satirical piece yet either.

There is another parody Shanklin might want to work on as well. It would be about the 19 year old white supremacist that recently got himself elected to the Palm Beach County Republican Executive Committee. David Duke may be toast, Strom Thurmond is buried, but you ‘gotta hand it to these progressive Republicans. They march to the tune of a different drummer.

I wonder if Saltzman sent the CD to Marcia Stirman. She's the chairwoman of the Otero County Republican Women in New Mexico who wrote in the Alamogordo Daily News that "I believe Muslims are our enemies," and that "Obama isn't a messiah or a Democrat. He's a Muslim socialist."

Columnist Paul Jenkins said it best in a piece this week: “Let's be thankful for one thing about Bush's presidency: the white male leadership of the Republican Party showed the world once and for all that its cronyism, corruption and discrimination completely outweighed any shred of competence.”

There is no humor in any of this, just the certainty that the party is marginalizing itself even further. I also always thought Log Cabin Republicans had to hate themselves, too, working within a party that was working against them. I thought moderate Republicans were routinely crucified in the GOP. But you would think 2008 sent a message to the Grand Old Party that America is seeking an era of openness, diversity, and wisdom.

You would think they would have heard the messages of John McCain’s noble concession speech, and the graciousness with which George Bush has been greeting and meeting the President Elect. You would think.

Instead, their new leadership is fighting off an onslaught of Aryans, racists, and intellectually impaired. I mean even Newt Gingrich is condemning the party for becoming too extreme.

I love it. When Newt becomes the moderate, what does that tell you about the party?

Happy New Year.

Head Shop Raids are Unconscionable

Raids on Head Shops Unjust and Unfair

By Norm Kent

December 28, 2008

“Look outside the window, there's a woman being grabbed
They've dragged her to the bushes and now she's being stabbed
Maybe we should call the cops and try to stop the pain
But Monopoly is so much fun, I'd hate to blow the game
And I'm sure it wouldn't interest anybody
Outside of a small circle of friends.”

---song by Phil Ochs

Duval Street is the epicenter of Key West, home to Sloppy Joe’s, Hemingway’s and a host of bars and hotels which have for a century captured the spark and soul of this land of the lost.

The Environmental Circus is gone, Valladares’ News Stand is history, and though La Te Da still stands, Larry Formica and his pink Cadillac have long since passed. Where a beat up wooden dock and a collage of cultures once gathered on historic Mallory Square, cruise ships now pour out thousands of tourists in flowered shirts onto the city’s main streets.

Fantasy Fest still wreaks havoc to the city every fall, but the Pirate image of this out of the way city has been lost for a long time now, to t shirt shops and condos; to name hotels and tourist traps. The heart of the city, Duval Street, has seen some of its landmarks become chain pharmacies, and cheap coffee shops like Shorty’s and Dennis Pharmacy have become convenience stores.

Walking down Duval Street in 2008 you are more likely to find a foreign exchange student from Slovakia peddling a bike for extra cash than you are to stumble upon a runaway teen from New York hustling a street corner for change. The times they are no longer changing. The times they have changed.

The temperature on October 17, 2008 in Key West was its typical and tropical 75 degrees. Ladies were sunning themselves bare-breasted at the Pier House’s private beach. Fishermen were working the pier, vacationers on mopeds criss-crossed the narrow streets, and more than one drunk stumbled down an alleyway. After all, it is still Key West.

But the heat on Duval Street was about to get hotter.

The shops on Duval Street opened their doors as usual, with no threats of a hurricane brewing. Merchants, if anything, were readying themselves for the annual, sin-filled festival of self-ordained decadence, Key West Fantasy Fest. On that date, many of them, head shops, were selling rolling papers, glass pipes, bongs, and other products designed to enhance the “right of happiness,” a constitutional right not too often protected by our courts.

The stores had signs all over them saying the products are for ‘legal and tobacco use only.’ But this distressed the new mayor, concerned that his little town was sending the wrong message: “You know that you don’t really smoke tobacco out of those things.” He sounded like Sarah Palin telling us how you could see Russia ‘from my house here in Alaska.’

The misguided mayor of this island city disapproved of the displays and set to do something about it. So he called the feds. You see, under broad Florida state laws, those pipes are legal. Not so under federal law. Understandably, this confuses the average citizen. Heck, it confuses lawyers too.

Title 21, Chapter 13 of federal law states: "Drug paraphernalia means any equipment, product or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance ..."

Supported by the local district attorney, the Mayor found his answer. On this quiet morning in October, federal authorities from 16 different agencies, aided by local and state operatives, converged on Duval Street and the neighboring streets where head shops dispensed their products lawfully, or so they thought.

Store by store, law enforcement entered with badges and guns, uniforms and crates- that’s right, crates- to cart away and confiscate the inventory of these stores to the waiting Budget U Haul Rent-a-Truck conspicuously parked in the center of the street.

Systematically, the feds sucked up any items they deemed as contraband that they say could be used to violate Title 21. The items taken then were rolling papers, lighters, ash trays, bongs, catalogues, pipes, and anything they say could potentially be used to violate the law. There was no order or determination of probable cause by a jurist, no ruling by a court that the items were illegal, just law enforcement officers with cartons and guns.

Furthering their operation, these officers then seized all the financial records of the stores, including their receipts and credit card purchases. That means if you have visited Key West lately and you purchased one of those glass pipes, the Feds now know where you live too. Your credit card number is now sitting in a federal database as a drug paraphernalia consumer. No, there was no judicial hearing on that either.

As a matter of fact, no one was charged with a crime, but the feds carted off 11,920 items defined as drug paraphernalia under the federal law, with an estimated value of three quarters of one million dollars. Not a bad haul for one sleepy, sunny morning in Key West.

Since the raids, at least two stores have summarily closed their doors, their inventory entirely depleted. Said Abby Frew, the owner of a shop called Energy: “The financial loss was too great. Stay open? I don’t think so. They took all my stuff.”

“I wanted to clean up the city’s image,” said Mayor Morgan McPherson. “I did not like what I saw in the windows of all those stores.” He added that if the business people don’t like it, they “call their congressman.”

He cleaned it up all right. Aided by a complicit federal government following their own set of laws, he kicked the businesses out without due process of law. He disgraced its community, screwed its businessman, and advanced a disgusting partisan personal political agenda. In the old Key West, he would have been recalled and reviled. In the new Key West, he becomes a hero.

An enlightened mayor might have called the chamber of commerce or invited a community discussion to discuss alternatives. The mayor might have used code enforcement and local ordinances to mandate zoning changes. Instead, he called and asked the Feds to do what city cops were not allowed to do.

Moti Elfasi, an Israeli by birth, is one of those businessmen whose inventory was seized. Having lived in Key West for a decade, he loves the atmosphere and the community of the island. But his head is spinning over what happened to him.

Here is what he told local reporters: “I don’t understand America. They gave me a license in Key West. I paid my taxes. I obeyed the law. Florida said it was okay to sell the things. But now people from Immigrations and Customs Enforcement, and federal agents from the Drug Enforcement Administration come in and take everything away from me without even a notice to remove it first.”

It’s more than that, Moti. You detrimentally relied upon the representations of Key West city representatives that you could lawfully do what you were doing. Day by day, hour by hour, Key West city police patrolled your business, and no one told you that you could not do what you were doing. You have been operating openly and legally for years. You paid your taxes. You had an occupational license. You employed your neighbors. Now you got screwed.

Key West is not the first city to deal with this conflict between state and federal laws, nor will it be the last. California is of course the epicenter of this cosmos of confusion, with the feds neither recognizing medical dispensaries nor Prop 215. Just last week, our government pushed the envelope even further, raiding head shops in San Diego.

Across this country, over the past few years, other shops across this country have been systematically and surreptitiously raided, and their products also seized. Meanwhile, pipes and paraphernalia are now being marketed nationally, expanding rapidly in convenience stores from coast to coast. Find one repressive right wing mayor in the right town with the wrong agenda and you could conceivably become the target. Ask Tommy Chong. It’s still happening on a wider scale.

What happens to the products which are seized?

Agents quietly warn the businessmen to suck up the forfeiture and not challenge it in court. The advisory goes something like this: “Most likely we will just destroy this stuff as contraband, but if you attempt to challenge it, well there is no saying we won’t come back and arrest you.” Facing a not-so-veiled threat of criminal prosecution, the stores live with the bankruptcies, seizures, and loss of their products. The feds say they will “destroy the contraband.” More likely, some of them will use it at their bachelor parties.

These raids may deprive stores of their inventory, but our government abandons fundamental principles. Our citizens lose their rights. Lawyers are denied the opportunity to meaningfully contest the seizures. One more chink is carved into the heart of liberty.

If the past stays true to form, these unconscionable seizures will not make the national news. Politicians are too complacent, the drug law reform movement is too weak, and the massive pot smoking public is too disorganized, probably more concerned about getting high on those products designed for legal purposes only.

As for those merchants, outside of a small circle of their friends, no one cares.

Domestic Violence in the Gay Community

Domestic Violence in the Gay Community

By Norm Kent

Originally published on Labor Day, 2008 in the Express Gay News of South Florida

In order to promote a campaign of public awareness against domestic violence, Broward County Sheriff Lamberti is appearing this month in a public service announcement on local television to urge battered women to get help.

Last year, in Florida, a state of 18 million people, there were over 115,000 cases of domestic violence reported. Over 160 of those cases involved deaths.

When most people think of domestic violence, the stereotypical response is that of a husband beating his wife. But wives as well as husbands, and family members against other household members, can also commit acts of domestic violence. Unfortunately, so do, and so can, same-sex partners.

Marriage ban or not, the laws on domestic violence are applied to homosexual relationships in Florida. If you strike or batter your partner, you can be arrested, jailed, and prosecuted. Those of us who practice criminal defense see same-sex prosecutions in court daily.

All it takes is one punch, a thrown beer bottle, or one cut. Someone gets hurt, paramedics were called, the police responded, and somebody went to jail. More often than not, the next day, in a more sober moment, you make up with your partner. The State Attorney’s office, however, with or without the victim’s consent can go forward with a criminal prosecution. Now you are facing probation or jail time, and court ordered supervision.

An arrest for domestic violence can also be devastating to your career. It almost can never be expunged and inhibits job opportunities in many social service fields. As hard as it is to do, the best way never to get there is sometimes own up to the fact that you have to secure a civil restraining order against the potential abuser. It can be obtained by anyone who has had harm done to their person or property, or can legitimately attest such harm is likely to occur.

To secure such an order, you must make an application and fill out a self-explanatory affidavit, available at your local courthouse. While a lawyer is not required, it is often prudent to secure independent counsel if you can afford to do so. This removes you from the emotion of the moment and insures that your petition is legally sufficient. This decision should depend on the immediacy of the moment. If you fear for your life, do not wait for an appointment with a lawyer. Do it yourself.

A restraining order makes any contact by the abuser illegal, subjecting the abuser to arrest and other penalties under the law.

At the initial stages, the courts tend to favor the complaining party. They figure that the restraining order is a protection against domestic violence, and that if you were not going to do anything wrong to another, you are not victimized by being told to stay away from that person.

Once secured, a sheriff's deputy will then serve the restraining order on the person against whom it is being imposed. After being served with that order, if that person violates any of the terms of the restraining order, or has any unlawful contact with you, or he or she will be subject to immediate arrest.

Once served, you must go to court with your temporary order to make it permanent. At that time, your former partner also has a right to appear to contest it, and represent his claims. This hearing allows the judge to hear both sides of the story and make a decision about whether the restraining order should remain in effect for an extended period of time. If the jurist elects to do, he can impose a wide breadth of conditions against either party to guarantee enforcement of his order. You can be restrained from e mailing, physical contacts, verbal contacts, and from going to or from specific locations. I have even seen limitations imposed on visits for your pets.

Having a lawyer present at this stage can be critical for both sides. The claimant needs to insure his application met the proper legal requirements. The target of the order wants to prevent his rights and freedoms from being abridged. A skilled lawyer will be able to make a concise and powerful presentation of the relevant facts in your case.

There are different kinds of restraining orders as well. Domestic Violence Restraining Orders are usually imposed against people you live or lived with. However, for an act of Repeat Violence, you may file for a Restraining Order against anyone. There must have been two occurrences or acts of physical or sexual abuse, and one occurrence must have been in the last six months.

Individuals who have or have had a continuing and significant relationship of a romantic or intimate nature may also file a request for a dating violence restraining order. The dating relationship must have existed within the past 6 months.

The biggest problem I see in the enforcement of restraining orders is when partners reconcile, as we are so often likely to do. Once you resume contact with your ex-, you will jeopardize any future attempt you may make to enforce that restraining order, or secure another in the future. Seeking a restraining order is something you should not do lightly. Fill one out falsely and you can be charged with perjury.

Another mistake I often see partners make is when they do reconcile, they fail to go to court to seek an order declaring the court’s orders null and void. An argument ensues, a fight develops, the police arrive, out comes the restraining order, and into jail goes one of the partners.

Finally, don’t assume that just because you own the house and pay the mortgage that if an altercation develops with a live in partner, that person will automatically be removed from the home. If the police are satisfied the homeowner engaged in an act of domestic violence, he could still be the one to go to jail and even temporarily removed by a court from his own home.

Despite the sheriff’s noble ads, domestic violence is not just battered wives anymore. It is gay men and women also beating each other.

The time to stop it was yesterday. The time to do something about it is now.

On a personal and non legal level, if you love your partner, then explore in the calm of day alternatives to prevent the situation from reaching these disastrous stages. See counselors, attend anger management sessions, and invite intermediary steps which can avoid the catastrophic consequences of violence. Have the guts to get help before a court orders you to do so. The life and relationship you save could be your own.

Send the Pastor Packing

The President’s First Mistake:
Tell Rick Warren to Preach Somewhere Else

By Norm Kent

Christmas Eve, 2008

It is my obligation as the publisher of a national gay newspaper (www.nationalgaynews.com) to weigh in on the President-Elect’s selection of Pastor Rick Warren to deliver an invocation at his inauguration. This is change we can’t believe in.

As a spokesperson for the gay community, I want to make it clear that I find it offensive.

Mr. Obama is not being inclusive and ‘post-partisan.’ He is being divisive. He is ‘swift boating’ us. After Jeremiah Wright, you have to wonder about his selections for Divine Guidance.

As an individual, I don’t give a damn who gives the invocation at the inauguration, because that is not the speech I want to hear. Besides, between the fires in California, earthquakes in China, and that tsunami in the Far East, God’s been doing a lousy job lately. That does not mean I am an atheist. I just believe what Woody Allen said in one of his films: “If there is a God, he is an underachiever.” Or maybe She.

Mr. Obama thinks he can move the needle and bring us all together in a unified effort for a common purpose. He sees an America where I can walk hand in hand with my partner down the aisle, and Reverend Pat Robertson will marry us. I think maybe our President Elect has a little too much of Harvard in him. I agree with Congressman Barney Frank. Some of these people will never be our friends. We are just always going to agree to disagree. If we can do so respectfully, that is great. But I don’t have to invite as the best man to my wedding a pastor who would not marry me to my partner.

Abraham Lincoln once said the best way to defeat an enemy is to make him your friend, and Mr. Obama is a strong believer in Mr. Lincoln. In fact, it was revealed today that he will be sworn in on the Lincoln Bible. Mr. Obama said his invitation to Pastor Warren does not compromise his ‘fierce’ support of gay rights. Good, then let’s not expend to much political capital on his decision to have Warren at his swearing in. Let’s understand that Mr. Obama is the President of all the people, including those we do not agree with. I sympathize with all that. I don’t have to agree with it though, and I won’t.

In fairness to Mr. Obama, and in fairness to Mr. Warren, they have met before and become friends. Mr. Warren in fact ran an AIDS conference two years ago at his church and made a point of inviting Mr. Obama to talk. He accepted, and it sparked an outcry amongst angry evangelical Republicans within his church. But Mr. Warren stood firm, arguing that both sides need to be heard, that it "takes two wings to fly." So both men are building bridges, both men are reaching out, and both are to be applauded. Just don't ask me to join in. Call me unreasonable, but I don't want half a hand.

One of the things I have learned in the civil rights movements is that you will continue to have adversaries. For every step forward we make, there will be those to push us back. For every partner we find, there is a Michael Savage nurturing hate against us. Unlike some activists whose comments I have been reading, I do not think gays have been thrown under the bus or that Mr. Obama has abandoned any promises yet. But I don’t intend to watch from the sidelines and give out free passes.


The pursuit of freedom is a relentless process which requires persistence. Yes, it demands patience, but not passivity. Oh, I remember all the well-intentioned persons who spoke vigorously against the gay marriage issue in 2004, saying we were pushing for too much too soon and too quickly. Where are they now?

Where are those voices of the status quo now that the Supreme Court of California has legalized same sex marriage?

Where are they now that Massachusetts and other states have also affirmed the principle that we can go beyond socially acceptable civil unions to permanently entrenched marriage declarations?

How many of those wimps wanted us not to push Lawrence vs. Texas to the Supreme Court, afraid we might get an adverse decision which would cripple forever the gay rights movement? When it comes to civil rights, there are no acceptable partial promises; no separate water fountains gays and lesbians have to drink from. Sometimes, it takes courts to mandate human rights political partisans will never provide for.

The Human Rights Campaign has given Mr. Obama a new agenda for 2009, saying it wants to ‘move on’ from the divisive issue of Pastor Warren. To his credit, the Pastor has posted on his own website an outreach to the gay community, saying that while he opposes gay marriages, he seeks to bridge our differences. That’s nice pastor, and it brings to mind all those nice Southern politicians who were willing to let Negroes ride the bus in the 1960’s, as long as they sat in the back.

I did not work all these years for a new America that is the same as the old America. I am not interested in appeasing evangelical Christians. I am interested in telling them to stop getting in our way. I am interested in letting them know there will be a price for racism, intolerance, and that just might be losing your place at the table this time.

My message to Mr. Obama is that there is going to be no ‘honeymoon’ either. The gay community in America has multiple voices and you can expect them to be heard. As this one instance with Pastor Warren shows, we won’t be quiet. Our voices want more than lip service. We seek action. The President Elect has an obligation to fulfill his commitment to support gay rights by initiating acts consonant with the same, from moving the equal rights non-discrimination legislation through Congress, to an executive order eliminating arbitrary exclusions of homosexuals from the armed forces of the United States of America.

Look, I know there is a political reality which mandates that a new President has to get his feet wet, be grounded, and move forward with a steadiness of purpose that is based on a sure foundation. That does not mean we have to compromise our desire to see equal rights initiatives delayed or postponed. Just because something is good for the President does not mean it is good for the rights of gays. The pressure must be kept up. I don’t see any Aryans on the inaugural dais.

To those of you who are already apologists for an invocation from a pastor, whose politics has been one of exclusion, shame on you. There are too many other men and women the President could have picked. He chose not to, and Rick Warren should not be on the inaugural platform any more than the President elect should have invited him.

Norm Kent is a criminal defense and constitutional rights Fort Lauderdale lawyer who can be reached at Norm@normkent.com