HomeMy WebLinkAboutA001 - Background information requested by City Attorney from NIMLO Lot
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h 000 C oruiecticut Avenue,N.W..Suite 8W.Washington. D.C. 20036 (202)466-5434
January 15 , 1980
John R. Klaus
City Attorney
Municipal Building
57 Kellogg Avenue
Ames, Iowa 50010
Dear John:
This is in response to your request for information con-
cerning the regulation of the sale of pot paraphernalia.
Enclosed find ordinances from Park Ridge, Illinois;
Birmingham, Alabama; Livonia, Michigan; public law No. 340 of
the State of Indiana; Glendale, California; Novi, Michigan
and the Model Drug Paraphernalia Act drafted by the Drug
Enforcement Administration of the United States Department
of Justice.
It should be noted that the Birmingham and Livonia ordi-
nances make the possession of paraphernalia unlawful, contin-
gent upon the fact that the paraphernalia has been used to
smoke marijuana.
For decisions on the subject of paraphernalia see :
Williams v. U.S. , 304 A2d 287 (D.C. App 1973) . It was held
that defendant' s possession of a small wooden pipe without
further evidence to its shape or size and absent residue in
the pipe, did not have the "sinister" implication that posses-
sion of the "implements and tools" of a crime raised and was
not sufficient to support conviction of possessing implements
of crime, to wit, narcotics paraphernalia.
Kraft V. State of Md. , 305 A2d 489 (Md. Ct. Spec. App. 1973) .
It was held that while the pipe found in defendant' s posses-
sion was undoubtedly suitable for smoking marijuana, where it
did not fall under proscribed umbrella of statute referring to
items and substances typically used in packaging and cutting
of contraband drugs such as a hypodermic syringe, needle or
other instrument or implement or combination thereof adopted
for administration of controlled dangerous substances by hypo-
dermic injections, conviction of unlawfully possessing con-
trolled paraphernalia was improper though evidence y�2C9 suffi-
cient to sustain other convictions. C
JAN 2 4 1980
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Also see Cole v. State, 511 P2d 598 (Okla. June 13 , 1973) .
The court held that a statute prohibiting possession of any
paraphernalia was unconstitutional for reasons of vagueness.
It would seem from the holdings of the above mentioned
courts that paraphernalia laws enforced against possession
of the paraphernalia items themselves would be unconstitutional.
This question is currently being litigated in the United States
District Court of the Southern District of Indiana. The
National Organization for Reform of Marijuana Laws has brought
suit to have P. L. 340, §§ 103 and 104 (enclosed) (9eclared
unconstitutional for reasons of vagueness. The judge issued a
temporary restraining order September 29 , 1977 , restraining
enforcement of P. L. 340 S§ 103 and 104 .
Enclosed find copies of materials relating to a recent
Federal court ruling involving Maplewood, Minnesota, and its
anti-paraphernalia law. These materials include the ordinances ,
the Findings of Fact, Conclusions of Law, and Order for Judge-
ment. As you will see from a reading of these materials the
court permanently enjoined the City from enforcing the ordinances
in question.
We are sending a copy of Bambu Sales, Inc . v. Gibson, 474
F. Supp 1297 (D.N.J. 1979) which held, inter alia, that a
municipal ordinance prohibiting the sale or Ti-splay of parapher-
nalia relating to controlled dangerous substances was extremely
overbroad as it included articles whose major uses were over-
whelmingly lawful.
See, also, High Ol' Times , Inc. v. Busbee , 456 F Supp 1035
(N. D. Ca. 1978) . In this action challenging the constitutionality
of a statute proscribing the sale or display of drug-related
printed materials to minors, it was held that the statute was
unconstitutional becuase it proscribed protected speech and was
overboard.
Enclosed find a copy of Tobacco Road v. City of Novi , C.A. No.
79-7100 (E. D. Mich 1979) . In this decision the Novi, Michigan
ordinance which prohibits the sale of paraphernalia was upheld
against a challenge charging, inter alia, that the ordinance
was void for vagueness. you will note that in the Tobacco Road
decision expert witnesses gave testimony offering proof that the
paraphernalia prohibited would be used with illicit drugs. The
Model Drug Paraphernalia Act sets out the factors which a court
should consider in determining whether an object is drug parapher-
nalia.
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Also enclosed find a copy of Carderella v. City of
Overland Park, Kansas , (No. 86246) which was decided in the
District Court of Johnson County, Kansas Civil Court Department.
In this decision the City of Overland Park was successful in
defending its pot paraphernalia ordinance against arguments
that the City exceeded its home rule powers in enacting the
ordinance, that the ordinance was void for vagueness and that
the ordinance constitutionally impinged upon protected
commercial speech.
The Novi, Michigan and Overland Park, Kansas Ordinances
deal with devices "intended by the seller for use with controlled
substances. " The Drug Enforcement Administration also bases
the prohibition of the selling of such items on certain deter-
mining factors which establish the proof that such an object
is intended for use as drug paraphernalia.
Any municipality preparing an ordinance prohibiting or
limiting the sale of pot paraphernalia must be prepared to
go into court carrying the burden of proof that the objects
under consideration are intended for use as drug paraphernalia.
The DEA model ordinance outlines a number of factors which a
court would consider and which a City should be prepared to
produce testimony on in order to prove that an object is in-
tended for use as drug paraphernalia.
Prince George ' s County, Maryland, a suburb of Washington, D. C.
recently adopted drug paraphernalia ordinance based on the Drug
Enforcement Administration' s Model Ordinance. A U. S. District
Court judge in Baltimore issued a temporary restraining order
preventing the County from enforcing its ban on the sale and
possession of drug paraphernalia. A copy of the order is en-
closed.
Please do not hesitate to contact us if we can be of any
further assistance.
S cerely,
Varle S. yne
General Counsel
CSR:crj
Enclosure