Little Shop With Locked Back Room Is Target of Civic Concern : Dispute: Critics say the Paisley Penguin’s paraphernalia make it a “head shop,” a ‘60s throwback, and illegal. Not so, says the owner, who defends his business.

To city officials, the collection of plastic pipes, vials, scales and cigarette papers in the locked back room of the Paisley Penguin are drug paraphernalia. To Alan Brown, owner of the small, downtown store, the items are nothing more than “smoking accessories.”

The city calls Brown’s store a “head shop,” a throwback to the 1960s when small shops catered to the drug culture. Brown counters that it is nothing of the sort. Rather, he says the colorful little business is a gift shop, catering to the local tourist trade.

And watching from the background as the city and Brown bicker is feisty, 73-year-old Mary McCulloch, who has single-handedly instigated the confrontation.

McCulloch, a retired probation officer who admits that she still enjoys a fight, is publicly goading the City Council into taking Brown to court. She considers drugs “the scourge of our country” and insists that the city put a stop to Brown’s sales, regardless of who may be right.

“Actually, I could care less about Mr. Brown. It is the city that allows this to happen that I am after,” said McCulloch, an eight-year resident of San Juan Capistrano. “I want to make the people in charge shape up and do the right thing.”

So far, no one agrees on what constitutes the right thing. Brown says he is a stalwart member of the community who contributes to youth groups, soccer organizations and local charities.

“We do all kinds of things to take part in the city events,” Brown said. “The city can’t just come in and close me down. This is still America, and I have my rights.”

For seven years, Brown peacefully ran his small business on the town’s main street, Camino Capistrano, next door to the Swallows Inn saloon and just a block from the historic Mission San Juan Capistrano. But for the past nine months, ever since McCulloch took up the cause, the city and Brown have struggled with their relationship, which is colored by the fact that the city is Brown’s landlord: The city Redevelopment Agency owns the property.

“This really makes the City Council cringe, thinking, ‘Here we are, the landlord to a head shop,”’ said John McClendon, an attorney with Stradling, Yocca, Carlson & Rauth, the law firm temporarily handling the city’s legal affairs.

But inside the Paisley Penguin, only a hint of the 1960s era lingers. Incense burns and Grateful Dead T-shirts hang on racks, but the store’s merchandise primarily consists of postcards, bumper stickers and other knickknacks that line the shelves and counters.

Whatever controversial articles that Brown sells are kept in a 20-foot-square, locked room at the back of the store. To even look at the items, Brown said, customers must be at least 18.

“We have had a sheriff’s deputy in to check everything,” Brown said. “There is nothing back there that can’t be used for tobacco. And that room stays locked and no one goes in unless we check their IDs.”

Legally, that’s enough, according to Brown’s lawyer, Barry Ross of Irvine.

“There is a statute in the law that allows him to sell these things, as long as it is in a separate room,” Ross said. “But the city seems intent on wanting to drive him out of business.”

Not so, McClendon said. The city is only responding to complaints and has been handling the Paisley Penguin affair “with kid gloves.”

“All we are asking is that he comply with the law and quit selling those items,” McClendon said.

But both attorneys agree that the law is muddy. Two companion and seemingly conflicting statutes remain on the books, one stating that such paraphernalia must be kept out of the reach of minors and under lock and key. The other says it is a misdemeanor to sell drug paraphernalia at all.

“The latter statute was adopted without rescinding the former, which usually means the latter holds,” McClendon said.

The latter even contains a soup-to-nuts list of those illegal items, including “carburetor pipes, chillums, bongs and roach clips,” all associated with the smoking of marijuana.

McClendon sent a letter demanding that the Paisley Penguin remove the paraphernalia by Thursday.

“Rather than prosecute, we’re asking him to abide by the law and remove those items,” McClendon said. “But it is in the district attorney’s hands.”

Brown, however, has so far refused to budge and notes that items in the back room are “an important part of my business.”

“We’ve bent over backward to accommodate the city,” Brown said. “But if they shut that down they confiscate a good part of my living.”

Brown, who rents month to month, said that without the back room, he couldn’t make enough profit to stay in business and nobody would buy the business from him. A compromise could be reached, he said, if the city would give him a lease--something he could offer to a potential buyer.

“That would make it a win-win situation,” Brown said.

Under redevelopment law, the city cannot evict him without also paying for his relocation costs, because the shop is in a redevelopment district.

Brown said he would move if the city would pay for it, but relocation fees are just what the city is trying to avoid, Mayor Kenneth E. Friess said. Last January, the city tried to oust Brown from the building, but the possibility of paying the required costs necessitated a new tactic.

“Mr. Brown is not a dumb person, and he has a good attorney,” Friess said. “If he weren’t in a projected redevelopment area, we could dump him out. But he wants as much as $100,000 in relocation fees. It’s a frustrating situation for us.”

But for McCulloch, all that matters is that the city act. She considers the store a “menace” and is determined to rid it of its back room.

“The point is that it’s the city that owns the building,” McCulloch said. “That makes it our building just like this is our city, all of ours. That’s what makes this different.”