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HomeMy WebLinkAboutA022 - report on hearing on City paraphernalia ordinance City Of AMES, Iowa A50010 JOHN R. KLAUS (515) 232-6210 City Attorney SANDRA M. ZENK Assistant City Attorney June 13, 1980 Honorable F. Paul Goodland, Mayor And Members of the City Council Of The City of Ames, Iowa In Re: Hearing on the City Paraphernalia Ordinance Dear Mayor Goodland and Council Members: The hearing on the challenge of the constitutionality of the City' s paraphernalia ordinance was held on Thursday, June 12. A copy of the brief filed on behalf of the City following the conclusion of the hearing is enclosed herewith for your information. The evidenciary hearing went extremely well. The Plaintiff did not produce any evidence to show that shopkeepers would be unable to distinguish between what is prohibited and not prohibited inventory, except for what must be viewed as a self serving declaration of the Plaintiff himself. On the other hand, a witness called by the City as proprietor of Wally' s Gift and Pipe Shop, after displaying considerable knowledge of pipes of all kinds, including marijuana and hashish pipes, established, I believe convincingly, that shopkeepers are in no genuine risk of inadvertently selling items of paraphernalia in the belief that they are to be used for smoking tobacco. There are some gray areas of course. However, that is not uncommon in any area of law. The benefit of the doubt always goes to the suspect. 2 It is certainly not, in my opinion, inappropriate for the City to contend vigorously that the ordinance drafted passes constitutional standards. The main focus for the attack on the ordinance has been the area of vagueness, relying almost entirely on the fact that the definition of a marijuana pipe uses the word "small" , but does not define it in terms of some scientific measurement such as millimeters. ( If milli- meters were used, the ordinance would be attacked on the grounds of the standards being arbitrary. ) In this regard, the United States Supreme Court has held: "That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too am- biguous to define a criminal offense. " We feel the law requires the Plaintiffs to bear the burden of proving facts sufficient to establish that business people of ordinary intelligence in the position of the Plaintiff will not have any reasonable and fair notice of what is prohibited. The Plaintiff attempted to establish that by the self serving testimony of the Plaintiff himself. The City responded with the testimony of an unbiased and objective shopkeeper engaged in the business of selling pipes and gift articles that the ordinance did not create any problems in that regard; and, that making the distinc- tion between a pipe designed for smoking tobacco and one designed primarily for use of controlled substances was not difficult for persons in the business . However, I want to caution the City Council against over- optimism. I believe we have recognized from the beginning that this whole matter was one that presented serious and difficult questions as is to be expected when a new area of regulation is being developed in response to a new societal concern. I believe, however, that the record that has been made at this point will be sufficient to either: 1. Enable the District Court to produce a deci- sion which, if it should strike down all or some part of our ordinance, will provide the guidance the City Council needs in developing a better ordinance, or 2 . Support an appeal to a higher court should that appear to be an appropriate course to follow. 3 Additionally, I feel that the City Council ' s adoption of the ordinance and its commitment to defending the same has done much to educate the public generally on matters of parapher- nalia, and this certainly must be viewed as a step forward in combatting the problem of increasing chemical dependency among persons in this community, young and old. Respectfully submitted, Z,7 � John R. Klau City Attorney JRK/dls cc: J. Elwell A. E. Siedelmann IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION JAY MAGNANI , individually, and ROLAND JESSE, JR. , individually, collectively * NO. 80-229-A doing business as SIDS ' HEADSHOP; STEVEN dePROSSE; AND IOWA NORML, * Plaintiffs, * VS. * CITY OF AMES, IOWA * DEFENDANT' S BRIEF Defendant. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * BACKGROUND The City Council of the City of Ames, Iowa adopted Ordinance No. 2749, effective on May 21, 1980 which provides in part: "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. " Sec. 3 , Ordinance No. 2749, City of Ames, Iowa. These proscribed items constitute the drug "paraphernalia" prohibited under this law. Several of the specific items of paraphernalia are specially defined, as follows: (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. " Sec. 2 (1) , Ordinance No. 2749, City of Ames, Iowa (2) " 'Marijuana or hashish pipe' : A pipe charac- terized by a bowl which is so small that the primary use for which it is reasonably adapt- ed 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. " Sec. 2 (3 ) , Ordinance No. 2749, City of Ames, Iowa. The ordinance excludes from its applicability: "manufac- turers, wholesalers, . . . etc. " See Sec. 3 , Ordinance No. 2749, City of Ames, Iowa. This ordinance is directed to retailers or other persons who traffic in drug parapher- nalia. It does not prohibit the mere possession nor the purchase of items of drug paraphernalia. By its terms the ordinance does not purport to prevent the sale of any ar- ticle or item of personal property that can be used to facilitate the consumption of a controlled substance. It is addressed to the sale and display of merchandise "primarily adapted for the use of a controlled substance. " Sec. 3 , Ordinance No. 2749, City of Ames, Iowa. Jay Magnani and Roland Jessee, the owners and operators of Sids ' Headshop in Ames, Steven DeProsse, and Iowa NORML filed a lawsuit in United States District Court 2 for the Southern District of Iowa seeking a temporary re- straining order and permanent and preliminary injunction against the enforcement of the ordinance. The temporary restraining order was granted on May 28, 1980; challenges having been made to the constitutionality of the ordinance on grounds of vagueness, overbreadth, right of privacy, equal protection, free speech, burdening interstate commerce and impairment of contracts. LEGAL ANALYSIS VAGUENESS Municipal ordinances, like state and federal statutes, bear an initial presumption of legality and con- stitutionality where they have reference to a subject matter within the police power of the municipality. The Flipside, Hoffman Estates v Village of Hoffman Estates, 485 F. Supp. 400, 409 (N.D. Ill . , 1980 ) ; See McQuillan, Municipal Cor- porations, Sec. 20. 06. Laws attempting to control the use of controlled substances are clearly within the proper scope of local legislation relating to health and safety. The Flipside, Hoffman Estates, 485 F.Supp. at 410; Tobacco Road v. City of Novi, (Memorandum Opinion) , No. 79-71000, E.D. Mich, June 21, 1979; Geiger v City of Eagan F.2d. No. 79-1831 (8th Cir. March 19, 1980 ) . The burden is on the party who challenges an ordinance valid on its face and enacted under lawful authority to prove facts to establish its invalidity. McQuillan, Municipal Corporations, Sec. 20. 08. With regard to constitutional challenges on vague- ness grounds, the Supreme Court has firmly ruled that such challenges to statutes which do, not involve First Amendment 3 freedoms must be examined in light of the facts applying to the case at hand. See United States v. Powell, 423 U. S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975) ; Tobacco Road v City of Novi, (Memorandum Opinion) , No. 79-71000, E.D. Mich, June 21, 1979. Since the City of Ames ' ordinance is directed to sellers or other persons who display paraphernalia, the only directly aggrieved or affected parties in this suit are the proprietors of Sids ' Headshop. The issue presented to this court is thus whether those individuals have been denied their right to have adequate notice of the proscribed con- duct of the ordinance. Plaintiffs Magnani and Jessee are, by their admis- sion, sellers of goods that may be deemed to be prohibited by the definition of paraphernalia. Paragraph 9, Complaint. It is their commercial or merchandising interest that they seek to protect in this lawsuit. Paragraph 9, 10, Com- plaint. It is therefore incumbent upon the Court to apply as a vagueness standard, a test of whether "business people of ordinary intelligence" understand what is prohibited by the ordinance. McGowan v Maryland, 366 U. S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) ; Tobacco Road v City of Novi, (Memoran- dum Opinion) , No. 79-71000, E.D. Mich, June 21, 1979; Music Stop, Inc. v City of Ferndale, (Memorandum Opinion) No. 79-73375, E.D. Mich, April 9, 1980. In McGowan vs . Maryland, supra, the U.S. Suprent Court de- clined to strike down a statute prohibiting retail sales of: "merchandise essential to, or customarily sold at, or incidental to, the operation of 'bathing beachs, amusement parks et cetera' from the coverage of the Sunday closing laws. The court stated: We believe that business people of ordinary intelli- gence in the position of appellants ' employer would be able to know what exceptions are encom- passed by the statute either as a matter of ordi- nary commercial knowledge of by simply making a i 4 reasonable investigation at a nearby bathing beach or amusement park within the county. " Id. at p. 428 It is likewise clear to persons in the tobacco smoking and accessories- business the items that are -prohib- ited by the City of Ames ordinance. The term "parapher- nalia" has a clear and precise "street" definition, under- stood by teenagers and young adults as well as by suppliers and retailers of smoking accessories. There have been judi- cial proclamations to the effect that "Paraphernalia" is known and understood in the law with respect to the adminis- tration of controlled substances. See The Flipside, Hoffman Estates Inc. , supra citing United States v Johnson 451 F.2d 1311 (8th Cir. 1976) . Admittedly, many courts considering questions of constitutionality of paraphernalia ordinances have struck them down. E.g. Indiana Chapter, NORML etal v Sendak,- etal F. Supp. , No. TH-75-142-C (S.D. Ind. , February 4, 1980) ; Walter A. Weingart v The Town of Oyster Bay ; Anthony J. Cordarella, d/b/a Ti er' s Records v City of Overland Park, Kansas Geiger, supra. But an examination of the underlying ordinances shows that in almost every instance the ordinance was considerably more broad in its definition of the proscribed items than is the City of Ames ' ordinance. The City of Ames ' ordinance itemizes several types of paraphernalia: An empty gelatin capsule, hypodermic syringe or needle, cocaine spoon, marijuana pipe or hashish pipe. Only the cocaine spoon and the marijuana and hashish pipes are specifically defined. Yet, no challenge is made to the vagueness of capsules or syringes. This is because these are items of common experience and knowledge. i. SC S 5 Marijuana and hashish pipes, on the other hand, because their nature permits no legitimate usage, have not developed a universal meaning. However, as ' slang' termino- logy they have as precise and specific a meaning to persons familiar with drug usage as needles, capsules or syringes do to the community at large. Such pipes are characterized by a small bowl, usually a screen, and they are reasonably de- signed for the smoking of marijuana or hashish. See Defi- nitions, Sec. 2, Ordinance No. 2749, City of Ames, Iowa. To the reasonably intelligent operator of a commercial es- tablishment that sells items associated with smoking, these items are unmistakable. According to the City' s Ordinance, paraphernalia also includes "any other instrument, implement or device which is primarily adopted or designed for the administra- tion or use of any controlled substance. " The vagueness test approved by the Supreme Court is one of reasonableness, whether the ordinance presents "ascertainable standards of guilt" . Tobacco Road v City of Novi, supra It has also been said: "That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambig- uous to define a criminal offense. " United States v Petrillo, 332 U.S. 1, 7, cited in Tobacco Road v City of Novi, supra The language "primarily adopted or designed for the adminis- tration or use of any controlled substance" meets the stan- dard of reasonableness and fair notice. Only objects that X- their physical nature and appearance are obviously .intended 1 6 to facilitate the use of drugs are "primarily adapted" for such use. It will be as apparent to the seller as to the police what these items are. The reasoning of the court in Music Stop v City of Ferndale, supra, in striking an ordi- nance similar to that of the City of Ames was that it is expecting too much of the "pipe sellers" to anticipate the primary adoptive use and design intent of every item it sells. This reasoning lacks persuasiveness when applied to the actual market place for paraphernalia. According to the City's ordinance paraphernalia must be primarily adapted or designed for the use of drugs. An item of paraphernalia cannot be reasonably designed for a legitimate use if it is also primarily adapted for an illegitimate one. It is specious to assume that retailers stock items for which they do not know the intended use. They would either gain that information from the supplier or by trade experience. There may be questions of interpretation as to specific items of alleged paraphernalia, but the language of the ordinance is sufficiently descriptive of the genre of proscribed items to reasonably make known to persons in possession of these goods that their sale or display is illegal. Thus, as applied to a commercial establishment whose stock may include drug paraphernalia, Ordinance No. 2749 of the City of Ames meets the fair notice requirement protected by the Due Process clause of the Fifth and Four- teenth Amendments to the U. S. Constitution. The law does not require the legislature to dissect its terminology to discover whether someone at some time may wrongly be accused of violating its terms. The language of the ordinance as it is obviously related to the use of illicit drugs presents a specific and assured warning to retailers of. the proscribed items of sale or display. - 7 OVERBREADTH Complainant' s reliance upon the concept of over- breadth as basis a for invalidating the anti-paraphernalia ordinance is misplaced. The theory upon which an overbreadth challenge is based is the constitutional principle that government objectives may not be obtained through means which sweep unnecessarily broadly and thereby invade areas of protected freedoms. Flipside, Hoffman Estates, Inc. , supra. In the first place the ordinance cannot reasonably be read to prohibit anything more than drug- related acces- sories. Furthermore, complainants enjoy no "protected free- dom" to use illicit drugs or to engage in the trade or sale of items inherently related thereto. Flipside, Hoffman Estates, supra, Tobacco Road v City of Novi, supra. None of the cases striking paraphernalia statutes have rested on this ground. Those that have discussed it specifically determine there is no individual fundamental right involved. See Flipside, Tobacco Road, supra. EQUAL PROTECTION Absent a showing of its application to a suspect class or upon a fundamantal right, a statute or ordinance needs to bear only a rational relationship to a legitimate government purpose in order to withstand a challenge that it violates the equal protection clause of the Fourteenth Amendment. The city reasserts that no fundamental interest is threatened by the ordinance as applied in its intended breadth. f i 8 The control of drug use is a legitimate concern of a municipality. The Flipside, Hoffman Estates, supra; Tobac- co Road v City of Novi, supra; Regulation of articles designed primarily to facilitate the use of drugs, to gla- mourize the culture surrounding the use of drugs and to increase the effect on the user of drugs is rationally related to the objective of curtailing drug use in the community. In Michigan District Court, wherein the City of Novi, Michigan' s paraphernalia ordinance, substantially identical to the City of Ames ' ordinance, was upheld, the court said, with respect to the claimed infringement on commercial speech interests: "the short answer to plaintiff' s claim is that the challenged ordinance is not directed to speech, commercial or otherwise. " Tobacco Road v City of Novi, Michigan, (Memorandum Opinion), No. 79-71000, E.D. Mich, June 21, 1979 . See also The Flipside, 485 F.Supp. 400, 409 (N.D. Ill, 1980) Likewise, the instant case presents no legitimate question of protected speech. The City of Ames ' ordinance regulates the sale or display of tangible personal property. No drug oriented magazine sales or advertisement are affected. Moreover the Supreme Court has indicated commercial speech that would promote an illegal activity could be forbidden. See Pitts burgh Press Co. v Pittsburgh Commission on Human Relations 413 U.S. 376, 399, 935 Ct. 2553, 2560, 37 L.Ed.2d 669 (1973 ) cited in The Flipside, supra, p 408. INTERFERENCE WITH INTERSTATE COMMERCE Generally, local enactments for the protection of the health, safety and welfare of the community are valid •5. 9 despite the burden they place on interstate commerce, so long as that burden is not excessive Pike v Bruce Church, Inc. , 397 U.S. 137, 142, 90 S .Ct. 844, 25 L.Ed.2d 174 (1970) . There is -no question that laws related to the curtailment of drug use are a matter of legitimate local regulation. Geiger v City of Eagan, supra. Any impact the paraphernalia ordi- nance in the City of Ames would have on interstate commerce is so minimal that it is, for constitutional analysis, an insignificant burden on commerce. See Tobacco Road v City of Novi, supra. RIGHT OF PRIVACY The Supreme Court has recognized and protected a constitutional "right of privacy" in a number of cases. See Annotation: Supreme Court' s Views as to the Federal Legal Aspects of the Right of Privacy, 43 L.Ed.2d 871. This right is based on. a number of constitutional principles and guaran- tees. However, it is not an absolute right of a person to do anything he or she wants. Annotation, 43 L.Ed.2d 871 . Cases analogous to this paraphernalia case involve the prohibition of sales of obscene material through the mail. See United States v Reidel, 402 U.S . 351, 28 L.Ed.2d 813, 91 S .Ct. 1410, reh den 403 U.S. 924, 292, L.Ed.2d 703, 915 Ct. 2223 (1971) . In this case the Supreme Court held that the right of a person to possess obscene material in the privacy of his own home did not confer on the seller a right to sell and deliver such material. The federal govern- ment could outlaw the use of the mails to send obscene materials. See Annotation, supra, p. 884. 10 In the case at bar, the City of Ames ' ordinance is directed to sellers of paraphernalia. No case has come to our attention that has held there is a constitutional right to use illegal drugs or drug paraphernalia in .the privacy of a home. Assuming arguendo, the right of privacy might apply in this way, the Ames ordinance is nonetheless valid because it does not attempt to regulate the use of drug parapherna- lia. It is directed to the sale of items declared by its terms to be contrary to the public health and welfare. In this regard, it is a proper exercise of local authority that does not invade any area of individual freedom. The Flipside, supra, at p. 410. IMPAIRMENT OF CONTRACTS The constitutional protection of contractual rights has no application to this litigation. Contractual rights are generally considered impaired to the extent of constitutional impermissiveness when "the statute must have the effect of rewriting antecedent contracts, that is, changing the sub- stantive rights of the parties to existing con- tracts" 16A Am. Jur.2d Constitution Law, Sec. 695. The ordinance challenged by plaintiffs is not directed towards the amendment or change of any contractual obligation. There is simply no contractual relationship affected by enacting the regulation of paraphernalia in the manner proposed by the City of Ames through its ordinance No. 2947 . CITY OF AMES, IOWA Safidra M. Zen Assistant City Atto hey Cbhn R. Klaus ity Attorney Municipal Building 5th & Kellogg Ames, Iowa 50010 11