The Superior Court dismissed the petition of Smoking Monkey and Smokers City in Seabrook, two Seabrook businesses, that sought a declaration that a Seabrook ordinance prohibiting “Spice” was null, void, and unenforceable. The ordinance, in part, forbids the transport, possession, or use of “synthetic cannabinoids,” commonly referred to as “Spice,” or their salts, isomers, and salts of isomers on municipally-owned highways. “Synthetic cannabinoid” is defined in the ordinance as “any substance that is a cannabinoid receptor Type 1 (CB 1 receptor) agonist, as demonstrated by binding studies and functional assays within the following structural classes.” In addition to that definition, section (B)(2) of the ordinance provides a list of thirteen specific compounds that qualify as synthetic cannabinoids.
Pursuant to this ordinance, Seabrook Police arrested a customer who allegedly purchased synthetic cannabinoids from the petitioners’ business. The petitioners had not been charged with violating the ordinance. However, the petitioners sought a ruling from the Court that the ordinance was unenforceable against them because (1) they were not selling any of the prohibited compounds listed under section (B)(2) and (2) the roads upon which they operate their stores are State-owned, not municipally-owned.
The Court dismissed the petition. First, the Court found that the petitioners’ argument revealed a misreading of the definition of “synthetic cannabinoids.” Even if the petitioners were not selling any of the specific compounds listed in (B)(2), the ordinance could still be violated if the petitioners did, or at anytime do, sell substances that constitute synthetic cannabinoids or the salts, isomers, or salts of isomers of synthetic cannabinoids under the general definition. In other words, the Court determined items in (B)(2) were only examples of prohibited substances under the ordinance and did not constitute an exhaustive list.
Second, the Court noted that the petitioners had not presented a theory regarding why the ordinance should be considered null, void, and unenforceable, including no basis why the ordinance could not be enforced on State-owned highways as well as on municipally-owned highways. The petitioners had not even presented an argument that the ordinance was unconstitutional or illegal. In fact, the ordinance had not been enforced against the petitioners but instead against a customer of the petitioners. The Court, therefore, could not declare that the ordinance could not properly be enforced against the petitioners in the future.
The Court could not rule that the Town’s ordinance prohibiting the transport or possession of “Spice” was unenforceable where the ordinance had not even been enforced against these two Seabrook businesses. However, the Court did not rule on the constitutionality or legality of the subject ordinance because these arguments were not presented.