The death of a local woman and a bill to amend regulations for hookah lounges, retail tobacco stores and vapor lounges prompted three speakers at the Ballwin Board of Aldermen meeting on Dec. 11.
Jason Politte still has painful memories from the night of Oct. 18, 2020. His daughter Marissa Politte had just finished working her shift at an urgent care off Clarkson Road when she was struck and killed by a driver.
“That driver was huffing nitrous oxide which caused him to pass out behind the wheel, creating the accident. He purchased the nitrous oxide from Coughing Cardinal but they’re not the only tobacco store or head shop that carries that stuff," Politte said. "The company, at that time, that we went after was United Brands, which creates Whip-Its. This is something that is supposed to be used to make whipped cream at home. Last time I checked, smoke shops do not have a dairy section.
"There’s absolutely no reason for this product to be at their shops. It’s an addictive drug, it’s focused on kids between the age of 18 and 25, and we just need to address it for what we can do. I would like to see it banned from smoke shops and head shops.”
Marissa’s mother, Karen Chaplin, was the final speaker on the topic.
“He passed out and ran her over like nothing," she said of the driver who killed her daughter. "We need changes to be made because the only thing I can say is that I promise you that if changes aren’t done, somebody else is going to lose a child, an aunt or a mother.
"This can’t keep going on like this. You have to make some changes so it’s not easily accessed for these people to get their hands on. ... Because of somebody else’s decision that night, I have a life sentence. We have a life sentence. Our daughter is gone because of this stuff. Please make some changes. I beg you.”
In between the two parents, Attorney John Simon spoke. Simon represented the couple in their successful lawsuit against Coughing Cardinal in Des Peres and United Brands, whose headquarters are in San Diego.
Simon said the case, which resulted in a $745 million verdict with $700 million of punitive damages against United Brands, is ground zero. It was the first lawsuit that was successful against a head shop and a distributor for selling nitrous oxide as a drug.
He added that there are federal laws that say when you sell it as an inhalant, it is misbranded, which renders it illegal and that the FDA Office of Criminal Investigation has their hands full over this topic.
“I don’t want to leave you guys with the impression that this is a one-off case; that this is a one-and-done issue," Simon said. "This is a 20-year-old kid who made a mistake; drove, huffed something, passed out behind the wheel and killed someone. This is a major problem.
"We have companies targeting head shops. One nitrous oxide charger makes 16 ounces of whipped cream. They sell them in packs of 24, 50, 100 and 600. They sell them at 11 at night to 18-year-old kids at stores like Coughing Cardinal, It’s a Dream Smoke Shop, Mr. Nice Guy, and they’re selling all of the drug paraphernalia that these officers who we are honoring tonight are working to confiscate from people while they police our streets."
Simon said he doesn't know why shops are being allowed to sell nitrous oxide to kids.
“From what we learned during our case, they’re not hiding it. It’s all in plain daylight. It’s a marketing ploy. One of the first things we found out at the trial is that they had been sued three times before by people who had been paralyzed. After inhaling this, it degenerates your spinal cord and causes you to have tingling numbness leading to being paralyzed," Simon said. "But that didn’t stop them. They kept selling and selling … not just in their community, but in Ballwin, in St. Louis and Des Peres.
"The first sale (United Brands) made to Coughing Cardinal was 60,000 nitrous oxide chargers. What accompanied them was not whipped cream but beach balls and towels. This is a party drug. It can cause people to be paralyzed, it can cause people to be addicted, and it can cause people like their daughter to be killed. It didn’t happen in some faraway place. It happened here … in Ballwin!”
While the speakers were passionate, the bill (No 4184) was not addressing what could be sold in hookah lounges, retail tobacco stores and vapor lounges but rather where they could be located.
The bill mainly limits where new facilities can be located in Ballwin. It elicited a wealth of comments from Mayor Tim Pogue, City Attorney Robert Jones Jr. and several aldermen.
“I would recommend, if the board is so inclined, to consider passing Bill 4184 and at least put in place the spacing and dimensional restrictions that could maybe lessen the proliferation of these kinds of shops,” Jones said. “If they’re not here, they’re not going to sell nitrous oxide.”
After offering his sympathies and prayers to Marissa’s family members, Alderman Mark Stallmann (Ward 2) noted that the Planning and Zoning Commission (P&Z) struggled with the fact that with nitrous, like many substances, abuse can be dangerous, but these substances are not illegal as such. He said P&Z didn't have the rationale on exactly how to move forward.
Stallmann added that limiting what can be sold needs to be in conjunction with a county-wide or state-wide law. He noted that although Bill 4184's passage will enable Ballwin to remain at its current six shops, the offending shop was not in Ballwin.
Alderman Frank Fleming (Ward 3) encouraged the city to continue to work on additional modifications to its retail tobacco sails legislation for future meetings.
“After the absolute tragedy which we heard about tonight, we decided to be a little more proactive in doing what we can to limit some of the things going on,” Fleming said. “I think we’ve done that with what we have in front of us. But in discussions leading up to where we are now, including having P&Z look at it, the discussion was that this is a legal substance being used illegally by people to impair themselves and in turn, endanger others. Something the attorney who spoke earlier tonight said (made) me wonder if we looked at that completely. He mentioned that something about it is illegal if (it is being sold) in a misbranded way.”
Alderman Kevin Roach (Ward 2) noted that City code already prohibits "retailers selling things that are going to be used to induce intoxications or hallucinations." Section 17 of the city code contains a list of solvents that could be sold for that purpose. These solvents are deemed as illegally distributed when sold for purposes other than those for which they were manufactured.
Roach noted that the city of St. Peters changed the word "solvents" to "substances" and then added nitrous oxide to the list. Ballwin could do something similar he suggested.
Fleming said the issue reminded him of the smoking ban about a decade ago.
“Ballwin was one of the first to pass it, then other municipalities started passing it, and eventually, it did go county-wide. So, even though it may not mean anything initially, if other municipalities looked at it and started thinking along the same lines, maybe it would have an effect eventually. It obviously would not be as quick as anyone would like, but it has to start somewhere,” he said.
Fleming also suggested that Ballwin could possibly pass something more restrictive; however, Jones responded that they cannot be inconsistent with state law … whether more or less restrictive.
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