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Manchester board votes 4-2 to table pseudoephedrine ordinance

Posted on Tuesday, August 20, 2013 at 9:40 pm

After an hour of debate and listening to concerned citizens and law enforcement officials, the Manchester Board of Mayor and Aldermen halted plans for an over the counter ban on pseudoephedrine-based medicines Tuesday – at least for now.

josh petersonThe board voted 4-2 to table the ordinance at its second reading as citizens began interjecting their opinions and questions surrounding the move’s legality continue to arise.

Aldermen Cheryl Swan, Russell Bryan, Roxanne Patton and Tim Pauley voted in favor of tabling the ordinance. Meanwhile aldermen Ryan French, who sponsors the ordinance, and Donny Parsley voted against it, hoping for a vote on the second reading. The first reading passed 4-2 on Aug. 6 with French, Parsley, Patton and Russell voting in favor of it. It requires three readings to pass.

After over an hour of back-and-forth debate Tuesday, Mayor Lonnie Norman called on the board to halt debate and get more parties involved.

“I’m willing to get everyone here and have a special meeting and meet with them if that’s what the board wants,” said Norman. “We can sit her and debate all night long. But we will start in the morning. We will get everybody up here and see what they think.”

Norman was referring to members of the Coffee County Anti-Drug Coalition, police departments, pharmacists and physicians.

“I don’t know that we have to table it to accomplish that,” added French.

Manchester officials started discussing the measure in June when the movement started in Franklin County as part of the “Stop Meth Now” movement. In Franklin County, individual municipalities, including Winchester and Decherd, started enacting bans on over-the-counter sales of pseudoephedrine-based products. Pseudoephedrine is the key ingredient in the production of methamphetamines.

The Manchester board voted in July to table the ordinance and wait on the state attorney general opinion at the advice of city attorney Gerald Ewell. But French and Parsley bucked Ewell’s advice and brought the measure off the table at the board’s Aug. 6 meeting.

“We all agreed, let’s wait on the [attorney general] opinion,” said Pauley during Tuesday night’s meeting. “I’ve heard it said who cares he is just a man. Well, he is a pretty powerful man.”

French insisted Tuesday night that the measure will work to slow meth labs.

“This has worked in other places. It’s that simple,” French said Tuesday night. “When this movement started in Missouri the same concerns were voiced. I understand you may drive to Murfreesboro and buy pseudoephedrine and purchase whatever else and we may lose those tax dollars but honestly I feel those will be temporary.”

French clarified the measure is designed to decrease meth labs and not necessarily meth use.

“The intention of this ordinance is to reduce labs and it will work. Will it solve the meth [use] problem? No, it won’t.”

Questions surrounding the measure’s legality are centered on Tennessee’s current “I Hate Meth Act,” which states that it shall supersede local ordinances.

 “Even if [the ordinance] is unconstitutional and beyond the city’s power to pass it, what happens then? Do we have somebody sue us to set aside our ordinance? Do we wait for the state legislature to attempt to void it? I think both of those things could occur,” Ewell told the board at the Aug. 6 meeting according to a taped recording obtained by the Times. “But my opinion remains. Looking at constitutional law and legal analysis this subject at the city level is not to be regulated.

Ewell advised the board of several scenarios in which a lawsuit could manifest against the city.

“Somebody has a cold and doesn’t want to go to the doctor [could sue us],” explained Ewell. “Some pharmacist that the city writes a ticket to [could sue us]. Those are the people that become criminals in this.”

“The main concern is that cities do not have the authority to do this,” said Dennis Huffer, a member of the Tennessee Municipal Attorneys Association (TMAA).

Huffer recommends that any other city wait for authoritative advice from the state attorney general before proceeding to do something they possibly can’t do.

“The state law appears to leave little ground for cities to act in this area,” he said.

The Tennessee Municipal Attorney’s Association (TMAA) issued an email with the advice of the Municipal Technical Advisory Service (MTAS) and the Tennessee Municipal League (TML) last month urging cities to use caution because these ordinances restricting over-the-counter sales would “lack validity.”

“TML and MTAS are of the opinion that federal and state law occupies the field in regulating these drugs and that ordinances adopted by cities would be of doubtful validity,” the email reads. “See particularly T.C.A. 39-17-431. MTAS is urging cities to be cautious and obtain an attorney general opinion approving cities’ authority in this regard before adopting such an ordinance.”

Citizens begin to speak out


Aside from the debate between aldermen, Manchester taxpayers began interjecting their opinions at Tuesday’s meeting. Some threatened to take their business elsewhere.

“I don’t live in the city limits but I am nonetheless effected by the decision regarding the ban of over the counter pseudoephedrine,” said Lamar Wilkie. “I agree, something should be done [about meth]. But not anything should be done. We need to step back and logically examine the facts rather than rely on sheer emotion to make a decision that opens a Pandora’s Box of unintended consequences.

“When I have the sniffles, I don’t go to the pharmacy just for Sudafed,” Wilkie added. “I also go for Kleenex, Vicks Vapor Rub, maybe buy a humidifier and some menthol stuff that goes in it. That adds up to a good total on which Manchester sales tax is charged. If you ban pseudoephedrine over the counter and make is prescription only, I guarantee you I will go to another city, buy my stuff and them come home. I’m not the only one.”

Lisa Moreland, who operates Coffee Café, shared Wilkie’s sentiments.

“We are talking about [a law] for the city of Manchester, we are not talking about the State of Tennessee. From a consumer’s standpoint, I’m just going to go over to Tullahoma or up to Murfreesboro and make my purchases. I’m going to walk out with my grocery cart full of merchandise. That’s merchandise that sales tax dollars you are going to lose. Because when I’m there I’m not going to just buy one thing,” Moreland told the board.

Police officers make their case


Manchester Police Department investigator Stuart Colwell, along with a TBI agent and retired DEA agent, spoke to the board in favor of making pseudoephedrine-based products prescription only.

“As one of the officers who have to go into meth labs and see how it affects lives I ask you to vote for this,” Colwell said.

Colwell admitted the move could be an inconvenience for citizens.

“Is it going to inconvenience people? Yes, and for that I apologize. But I can tell you personally that inconvenience would be worth it to me to keep one child from being hurt. I have personally seen hundreds. I have seen children murdered over methamphetamine.”

Swan told Colwell that the city couldn’t act outside of its legal authority.

“I would never ask you to search a house without a search warrant because you don’t have the real authority to do that,” she said. “And we have a city attorney telling us we don’t have the legal authority to do this.”

Colwell countered that the threat of a lawsuit is always imminent.

“If I go into a meth lab and get burnt, who do you think will sue the City of Manchester?”

Pharmacists won’t write prescriptions


Despite some confusion and some insistence that pharmacists would be able to actually write prescriptions to patients to avoid a doctor visit should the ordinance pass, Dawn Hafer with Baker Brothers Drug Company cleared the air Tuesday.

“[Pharmacists are] not prescribers,” she told the board.

That is consistent with what Hafer said last week.

“[Patients] will have to go to a prescriber, which is a physician or a clinic … and that will take time away from the physician,” Hafer told the Times last week.

Manchester physician Jay Trussler, who also serves as the Coffee County Jail doctor and has seen firsthand the effects of meth, said a doctor’s visit may not always be necessary to obtain certain medicines.

“If someone who is an established patient of my practice called and wanted me to call in their Sudafed without coming in and paying a $25 co-pay, I wouldn’t have a problem with that,” Trussler explained. “It isn’t a scheduled drug. With certain narcotics the patients have to return each month.

But Trussler cautioned that some doctors could use the move as a money maker.

“There are a lot of good doctors in this town who are diligently trying to do the right things,” explained Trussler. “But there are doctors in this town that would certainly use this as a money maker that would do more to contribute to the meth problems.

Currently the state’s “I Hate Meth Act” calls for pseudoephedrine sales to be over the counter and to be tracked using the National Precursor Log Exchange (NPLEx) system. Under the law, pharmacies can’t sell more than 3.6 grams of pseudoephedrine per day or more than 9 grams per 30-day period to one person, unless the person has a valid prescription. Law enforcement officials say that system is circumvented by “smurfers” who use multiple identifications at different locations to obtain more than the legal amount of the drug.

The meth problem

A study conducted and released by the Tennessee Comptroller’s office shows meth lab incidents in Tennessee rank first in the country. According to the study and the El Paso Intelligence Center (EPIC), there were 2,157 reported methamphetamine lab incidents in Tennessee in 2010. Second was Missouri with 1,998. Kentucky reported 1,361. Border states Mississippi Alabama and Georgia reported 937, 720 and 334, respectively.

Of the 2,157 reported in Tennessee in 2010, 86 were in Coffee County, 99 in Warren County and 70 in Franklin County. Those numbers from the Tennessee Methamphetamine Intelligence System (TMIS) do not include federal or misdemeanor convictions for methamphetamine related offenses, according to the comptroller’s report.

“That whole region of Lincoln, Franklin and Coffee County – that’s ground zero for Tennessee,” said Tommy Farmer, Director of Tennessee Meth and Pharmacy Taskforce with the TBI. “People don’t realize this unless you’ve been in the meth game.”

The past 12 years have been an ongoing effort to combat the problem without taking extraordinary methods, Farmer said.

“We have 12 years of trying everything we can possibly do and spent millions of dollars trying to rid this and combat this,” he said. “We have legislation where we have taken incremental steps to limit access and amounts. We have done everything we can do.

“The FDA let the genie out of the bottle and we would prefer on the national level that the FDA put the genie back in the bottle.”

The comptroller study goes on to highlight other problems other than the actual meth lab. According to the study, Tennessee spent over $4 million in federal funds to clean up methamphetamine lab sites at an average of $2,500 per site.

Also, in fiscal years 2010 and 2011, 722 children were placed in Department of Children’s Services custody for methamphetamine related issues at an estimated cost of $19.6 million. The cost range to clean a home of the toxins is between $5,000 and $25,000, according to the report.