The owner of a prominent Hattiesburg convenience store has filed suit against the City of Hattiesburg, saying city officials have violated his First Amendment rights by disallowing the sale of certain items in the store and citing him for six counts of possession of paraphernalia.
Lucas Tucker, owner of the Handy Pantry at 2425 West 4th Street, originally filed the complaint June 8 in Forrest County Chancery Court, but because of the First Amendment issue, the case has since been removed to United States District Court on Main Street. The suit alleges that although the Handy Pantry has been conducting the same type of business for more than 32 years in the same location, an ordinance passed in 2019 by members of Hattiesburg City Council led to improper citations at the store, in particular the citation of selling items that Tucker states should still be legal to sell.
Ordinance 3258, which was passed by council on June 18, 2019, allows persons in Hattiesburg to sell “illegal” items – as defined in Mississippi Code Section 41-29-105 – so long as those persons who sell the illegal items comply with said ordinance. On March 17, code enforcement officer Whit Sanguinetti cited the Handy Pantry as having violated to of the ordinance’s sections, as follows:
- No person shall offer for sale any items described in (the aforementioned code) in open displays which are visible or accessible to the public without the intervention of a store employee or the store’s owner. Any person who sells any (such) items … shall require proof that he or she is at least 18 years of age; and
- No person shall offer for sale any items described in (the aforementioned code) within 750 feet of any church, school, kindergarten or preschool.
“(Despite the citations issued by Sanguinetti), there is no specific description of the items that were cited, nor any indication what the specific basis for the citations was insofar as there is no fact relating the citations to any specific use, possession, manufacture of drugs or any other drug-related activity,” Tucker’s suit states.
According to the suit, city officials took 74 photos from the inside of the Handry Pantry on the date of the citations, then sent those pictures to Tucker. Included in those photos are candy bars, chips, sodas, beer, incense, cigarettes and various other convenience store items.
“But there was no particular item identified as giving rise to a citation,” the suit reads. “No other items except those described herein have been produced in discovery in the criminal cause by the City of Hattiesburg and no reasoning has been provided as to why the (Handy Pantry) was cited nearly four years after the ordinance was passed.”
During his inspection, Sanguinetti cited the store for possession of four safes, one shot glass, one grinder, one hookah and three water pipes. However, Tucker maintains that unless someone purchasing an item from the store indicates to the store clerk that he or she is intending to use those items for an illegal purpose, Tucker and his employees would have no idea what the customer’s intentions would be.
Furthermore, if a customer did indicate that the items would be used for illegal purposes, that person would immediately be escorted away from the store without being allowed to purchase a single item.
“Grinders can be used in various illegal applications,” the suit states. “Ashtrays can be used in various permitted applications. Hookahs, pipes, bongs and chillums are used to smoke various types of legal herbs and tobaccos and are also used as artistic items of display, amongst other things.
“Apples, bananas, lighters, fertilizer, top soil, pots, pans, flasks and aluminum foil can be utilized to use, possess, manufacture, and/or conduct other activities with illegal drugs. The (Handy Pantry) sells various legal herbs and other items that can be legally consumed or otherwised used utilizing the alleged paraphernalia that was sold at the (Handy Pantry) that (Tucker) was cited for.”
The suit also states that no school existed within 750 feet of the store when it began operations more than 32 years ago, that none of the items noted in the citations are alleged to be used in any drug-related activities, and that all persons who enter the store must prove they are at least 18 years old.
“(Tucker) has been forced to remove many items from his store due to the enforcement of the ordinance and has lost profits due to the decrease in sales that (he) previously received from those items,” the suit reads. “The City Council of Hattiesburg has no authority to contradict the laws of the state of Mississippi.
“The City Council of Hattiesburg has no authority to create new standards for probable cause that a crime has occurred. The City Council of Hattiesburg has no authority to apply use restrictions to the (Handy Pantry) retroactively. Any attempt by the government to criminally ban an item due merely to the graphics displayed on or around it runs afoul of the First Amendment of the United States Constitution and the Constitution of the State of Mississippi.”
Among other measures, Tucker’s suit requests the following:
- A declaration from the court stating that the ordinance is invalid because it contradicts the laws of the State of Mississippi;
- A declaration from the court stating that city council was arbitrary and capricious in adopting the ordinance;
- A declaration from the court stating that the city in enforcing the ordinance selectively; and
- Damages for the loss of profits caused by the city’s enforcement of the ordinance.
