Court refuses to dismiss Old School case
Civil suit filed by city of Ontario moves ahead

By William Lundquist
Argus Observer
Thursday, January 31, 2008 12:30 PM PST

Ontario — The City of Ontario’s civil lawsuit against Victoria Miller, owner of the local business Old School, is proceeding after Vale attorney Brian Zanotelli’s motion to dismiss the case was rejected Jan. 22 in Malheur County Circuit Court by Morrow County Judge Jeffrey Wallace.

The city served Miller with the civil complaint Dec. 5, asserting she knowingly sold drug paraphernalia that would be used for a controlled substance. The suit asks for a civil fine of $10,000, the city’s legal costs and an injunction prohibiting Miller from selling, delivering or possessing drug paraphernalia.

Miller hired Zanotelli to defend her and made a legal declaration Dec. 11 denying the city’s allegations. She requested the court dismiss the case and make the city pay her legal costs.

“I sell high-end glass tobacco pipes, rolling papers for people to make their own cigarettes and decorative cloth posters,” Miller said in her declaration. “Everything I sell is legal and is specifically intended for legal use. I would not sell anything knowing it would be used illegally. I just want to run my business and contribute to my community as a taxpayer and good citizen.”

Miller denied knowing the products sold out of her shop would be used with controlled substances or used unlawfully.

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“If I knew that someone was going to buy my products to break the law, I would kick them out of my store and not sell to them,” she said.

At the same time Zanotelli filed Miller’s declaration, he filed a motion to disqualify Malheur County Circuit Judge Burdette Pratt from hearing the case because Miller believed she could not receive a fair and impartial trial from him.

Pratt granted the disqualification.

Zanotelli’s next strategy was to file a motion for summary judgment, in which he asked the judge to drop the case unless the city showed enough evidence to proceed.

“It is improper to file a lawsuit and then scramble for a way to prove that lawsuit,” Zanotelli said in his motion. “It is time for the court to go beyond the mere allegations of the complaint. The court must not allow the City to proceed on a hunch.”

The city’s response to the motion was to produce a declaration from former Old School employee Krystal Priester, Parma, and one from Ontario Police Chief Mike Kee.

Priester said she worked at Old School 20 to 40 hours a week from June through September 2007. She said Miller trained her and other employees to answer customers’ questions about how to use the products sold at Old School.

“Such products have included, but not limited to, grinders used to process marijuana, isomerization devices used to increase the potency of marijuana, scales used to weigh marijuana, containers used to store or conceal marijuana, kits used to conceal the presence of marijuana in one’s urine, and pipes, tubes or bongs used to ingest, inhale or otherwise introduce marijuana into the human body. At no time were employees trained to demonstrate the use of these products with tobacco,” Priester said in her declaration.

In her declaration, Priester asserted she witnessed Miller talk with customers numerous times about using Old School’s products in conjunction with marijuana, but never with tobacco. She also said Miller did not ask customers for their medical marijuana cards, and she did not train her employees to do so.

She also asserted Miller sold devices used to ingest marijuana to customers less than 18 years old.

Priester said some devices sold at Old School are specifically designed for marijuana use and have no tobacco use. She also said Miller chose the decor of the shop, including posters showing marijuana leaves, plastic marijuana leaves in displays and magazines about marijuana.

“There were no adornments promoting tobacco use,” she said.

Priester also asserted she once saw Miller and two customers coming up from the basement of the shop and all three smelled of marijuana.

In his statement, Kee said he has had extensive training and experience in recognizing drug paraphernalia as defined in the Oregon Revised Statutes and observed several such items on June 27, 2007, and more recently, on Jan. 4.

Zanotelli, however, called the timing of Priester’s declaration suspicious, since Miller had filed a lawsuit in October against Krystal and Levi Priester, alleging they took $27,500 in cash, cars and products from her. He said Priester is conducting a vendetta against Miller and she sent Miller e-mails threatening to ruin her business.   

The lawsuit will return to court at 3 p.m. Feb. 15 when Union County Judge Phillip Mendiguren is scheduled to hear the city’s motion to compel Miller to turn over documents, including Old School inventory records since Jan. 1, 2007, all gross sales volume records for 2005, 2006 and 2007, documents showing all customer names and addresses, and the names, addresses and telephone numbers for all Old School employees since Jan. 1, 2007. The request for the records was made Dec. 5 and gave Miller 30 days to comply.

Zanotelli replied in a Jan. 19 letter to Ontario City Attorney Larry Sullivan that Miller did not have inventory records or documents such as checks or credit card payments showing her customers’ names.

He complied with the request for the list of Old School employees. Zanotelli called the request for three years’ gross sales volume records irrelevant, annoying, embarrassing, oppressive and unduly burdensome.

Sullivan was not satisfied with the response and requested the court compel Miller to produce the documents.

Zanotelli said he will argue relevance at the hearing.

“You can’t just ask for stuff to burden the defendant,” he said.

Sullivan said he would make no statement about the case except to say he was not about to show his strongest cards yet.