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HomeMy WebLinkAboutA002 - cover letter for ordinance City of AMES, Iowa 50010 JOHN R. KLAUS Public SatetY City Attorney B Idg (515) 232-6210 R. MICHAEL HAYES SANDRA M. ZENK Assistant City Attorneys January 22 , 1980 i:OW Honorable Patil Goodland, Mayor And Members of the City Council Of The City of Ames, Iowa In Re : Dope Paraphernalia Ordinance Dear Mayor Goodland and Council Members : Pursuant to the instructions and direction of the City Coun- cil, I have prepared and enclosed herewith, a form of or- dinance designed to prohibit and prevent the sale or display of paraphernalia for the use of controlled substances to minors . As I am sure the Council knows , the constitutionality and validity o� ordinances of this type is very much an open question. In this regard see the enclosed letter from Charles S. Rhyne, General Counsel to the National Institute of Municipal Law Officers . Nevertheless , the ordinance I have prepared is patterned very closely after one enacted by the City of Novi , Michigan and upheld and sustained against a wide range of constitutional and other legal attacks by the U. S. District Court of 'the Eastern District of Michigan in a case decided on June 21, 1979. You will note that the ordinance defines "controlled sub- stance" by incorporating to reference, the provisions of Chapter 204 of the 1979 Code of Iowa. For this reason, the procedure for enactment of this ordinance must follow that established in Section 380 . 10 of the Code of Iowa for adop- tion of state law provisions by reference. This is a simple procedure but does entail the holding of a public hearing pursuant to notice published not less than four nor more than twenty days before the date of hearing, and adoption of the ordinance within thirty days following, that hearing. -2- Therefore, if the City Council chooses to go forward with the enactment of this proposed ordinance it should set a date for hearing and direct the City Clerk to cause publication of the notice required by law. Respectfully submitted, John R. Klaus City Attorney JRK/dls cc A. E. Siedelmann ORDINANCE NO. • AN ORDINANCE TO PROHIBIT THE SELLING, DISPLAYING, FURNISHING, SUPPLYING OR GIVING AWAY TO PERSONS OF LESS THAN EIGHTEEN YEARS OF AGE CERTAIN PARAPHERNALIA DE- SIGNED TO FACILITATE THE UNLAWFUL USE OR ADMINISTRATION OF CONTROLLED SUBSTANCES; PROVIDING PENALITIES; AND ESTABLISHING AN EFFECTIVE DATE. BE IT ENACTED by the City Council of the City of Ames, Iowa: Section One. Short Title and Citation. This ordinance shall be known and may be cited as the Paraphernalia Regulations of the City of Ames. Section Two. Definitions. The following words and phrases when used in these regulations for the purposes of these regulations shall have the meanings respectively ascribed to them in this section, except where the context clearly indicates a different meaning: (1) "Cocaine spoon": A spoon with a bowl so small that the primary use for which it is reasonably adapted or designed is to hold or administer cocaine, and which is so small as to be unsuited for the typical lawful uses of a spoon. A cocaine spoon may or may not be labeled as a "cocaine" spoon or "coke" spoon. (2) "Controlled substance": Any drug, substance or immediate precursor enumerated, defined or established pursuant to the provisions of Chapter 204 Code of Iowa 1979, also known as the Uniform Controlled Substances Law. (3) "Marijuana or hashish pipe": A pipe characterized by a bowl which is so small that the primary use for which it is reason- ably adapted or designed is the smoking of marijuana or hashish, rather than lawful smoking tobacco, and which may or may not be equipped with a screen. (4) "Paraphernalia" : An empty gelatin capsule, hypodermic syringe or needle, cocaine spoon, marijuana pipe, hashish pipe, or any other instrument, implement, or device which is primarily adapted or designed for the administration or use of any controlled substance. (5) "Person": An individual, corporation, business trust, estate, trust, partnership or association. Section Three. Sale or Display to Minors Prohibited. It shall be unlawful for any person to sell, offer for sale, display, furnish, supply or give away any empty gelatin capsule, hypodermic syringe or needle, cocaine spoon, marijuana pipe, hashish pipe, or any other instrument, implement or device which is primarily adapted or designed for the administration or use of any controlled substance to any person who is less than eighteen years of age. 2 The prohibition contained in this section shall not apply o manufac- turers, wholesalers, jobbers, licensed medical technicians, technolo- gists, nurses, hospitals, research teaching institutions, clinical labora- tories, medical doctors, osteopathic physicians, dentists, chiropodists, veterinarians, pharmacists or embalmers in the normal lawful course of their respective businesses or professions, nor to common I carriers or warehousers or their employees engaged in the lawful transportation of such paraphernalia, nor to public officers or employees while engaged in the performance of their official duties, nor to per so s suffering from diabetes, asthma, or any other medical condition re%uiring self injection. Section Four. Penalties and Remedies. (1) Violation of the provisions of this ordinance shall constitute a simple misdemeanor punishable by a fine not exceeding one hundred dollars ($100) or by imprisonment for a period not to exceed thirty (30) days. (2) In addition to or in the alternative to the provisions of sub- section (1) above, the City Council may institute civil pro- ceedings to obtain injunctive and declaratory relief or such other orders of the court as are reasonable and proper to abate practices, conditions or circumstances found to be contrary to or prohibited by the provisions of this ordi- nances. Section Five. Construction. This ordinance constitutes remedial legis- lation and is to be liberally construed to give effect to i4 purpose. Section Six. Severability. It is the legislative intent that should any provision, section, clause or sentence be held unconstitutio al or inva- lid, such holding shall not be construed as affecting the validity of any of the remaining provisions, sections, clauses or sentences. Section Seven. Effective Date. This ordinance shall be i�i full force and effect from and after its passage and publication as equired by law. Passed this day of 1980. Gina Bicknese, City Clerk Paul Goodland, Mayor? II R National i. F r - Institute of F Municipal Law Offioers ; 1000Connecticut Avenue,N.W..Suite 800.Washington. D.C. 20036 (202)466-5424 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 eviderye vrq3 suffi- cient to sustain other convictions . C ,a rn JAN 2 4 18W Also see Cole v. State, 511 P2d 598 (Okla. June 13, 1973) . The court held tit a statute prohibiting possession o any paraphernalia was unconstitutional for reasons of vagu mess. It would seem from the holdings of the above mentjoned courts that paraphernalia laws enforced against posses0ion of the paraphernalia items themselves would be unconstitutional. This question is currently being litigated in the Unitled 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, SS 103 and 104 (enclosed) declared unconstitutional for reasons of vagueness. The judge issued a temporary restraining order September 29, 1977, restraining enforcement of P. L. 340 SS 103 and 104. Enclosed find copies of materials relating to a r cent Federal court ruling involving Maplewood, Minnesota, d 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 a ia, that a municipal ordinance prohibiting the sale or lay ofjpar.apher- nalia relating to controlled dangerous substances was extremely overbroad as it included articles whose major uses were over- whelmingly lawful. See, also, High O1' Times, Inc. v. Busbee, 456 F S�pp 1035 (N. D. Ca. 1978) . In this action c allenging the const tutionality 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 driigs. The Model Drug Paraphernalia Act sets out the factors which a court should consider in determining whether an object is drag parapher- nalia. -3- • Also enclosed find a copy of Carderella v. City of Overland Park, Kansas, (No. 86246) which was decided 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, arle S. yne General Counsel CSR:crj Enclosure