Robbins Report

In Barnstable, changes to junk dealer regulations are challenged

Attorney files brief challenging new regulations proposed by the Barnstable Police

Story and photo by Peter Robbins

As reported on January 12th, Attorney Richard Cohen followed up on his promise and filed a nine-page brief with the Barnstable Licensing Board on January 29, 2009, challenging the new junk dealer regulations proposed by the Barnstable Police Department.

The first premise of the brief stated,

"A state or municipal body cannot apply its police powers to restrict or mandate otherwise lawful contractual transactions between private parties. U.S. Constitution...Art I s 8 cl.3... Congress shall have Power....[t]o regulate Commerce....among several States. The Supreme Court has long read the clause also to prohibit the states, in the absence of specific congressional authorization, from regulating interstate commerce, or private contracts which comprise such commerce."

Attorney Cohen addresses the board on January 12, 2009.

Cohen went on citing,

"....provision gives the Chief of Police the unilateral power to freeze and immobilize gold sales......in short without even minimal due process, gives the police the power to destroy the value and use of any dealer's license, and for any reason - or for no reason - for instance, for failing to be adequately deferential to a policeman".

When you examine any denomination of US currency, you will find THIS NOTE IS LEGAL TENDER FOR ALL DEBTS, PUBLIC AND PRIVATE clearly printed on each note.  Because of these very words, there was a strong objection to the proposed regulations which would prohibit junk dealers from paying out more than $50 cash for any transaction. The brief went on to say,

"Beyond regulations for fair dealings, no state or municipality has the power to restrict otherwise legitimate contracts between private parties, and particularly, has no power to convert lawful US currency into contraband (here the 51st dollar would become illegal, and grounds for revocation and/or criminal action.........The Town of Barnstable is being asked by the police - in the name of "order" to make the use of US currency illegal. The proposed cash limit patently discriminatory because it singles out junk dealers and fails to apply similar police enforcement issues to similarly situated businesses".

Numerous other points were outlined in Attorney Cohen's brief, some of which were noted off the record as being, " legitimate concerns ".  The regulations were posted for public hearing at today's meeting of the Barnstable Licensing Authority and by agreement of all parties, it was continued to the February 23, 2009 meeting.

According to Attorney Cohen, he and Town Attorney David Houghton will sit down and re-write the licensing regulations for junk dealers so there will be a "clean bill" or one which everyone can agree on.