HomeMy WebLinkAboutA025 - letter to Council with U.S. District Court decision �'`fin. L..�
City of AMES, Iowa
Public li Safety Bldg. 50010
g
(515) 232-6210
JOHN R. KLAUS
City Attorney
SANDRA M. ZENK
CRAIG V. SCHRADER
Assistant City Attorneys
July 31, 1980
Honorable F. Paul Goodland, Mayor
and Members of the City Council
of the City of Ames, Iowa
In Re: Paraphernalia
"Future ages will wonder at us,
as the present age wonders at us now. "
Pericles, Mayor of Athens
460-429 B.C.
Dear Mayor Goodland and Council Members :
The U. S . District Court for the Southern District of Iowa
has enjoined the enforcement of the City of Ames ' "Drug
Paraphernalia Regulations" . A copy of the court' s deci-
sion is enclosed. A copy of the Defendant City' s final
brief and argument is also enclosed for the sake of
information and comparison. The Plaintiff' s argument
was, in essence, what has been adopted as the ruling and
order of the court.
The Ames ordinance is patterned after a form enacted by
the Michigan cities of Novi and Ferndale. At the time
first considered by the City of Ames this form of or-
dinance had a record of being sustained by the U. S .
District Court for the Eastern District of Michigan.
Tobacco Road v City of Novi, (No. 79-71000 E.D. Mich.
June 20, ) 1979 . Later the same court struck down the
same form of ordinance when adopted by the City of Fern-
dale. Music Stop, Inc. v. City of Ferndale, 488 F. Supp.
390 (E.D. Mich. April 9, 1980 ) .
In deciding the Ames case the U.S . District Court for the
Southern District of Iowa laid the "Novi" decision and
the "Ferndale" decision side by side and chose to adopt
A Combining Education and Industry with Hospitality
2
the views expressed in the "Ferndale" decision. In doing
so the court is in accord with the dicta and views ex-
pressed by its superior court, the Eighth Circuit Court
of Appeals, in the case of Geiger v. City of Eagan,
Minnesota, 618 F.2d 26 (8th Cir. 1980) , a decision com-
mented on in my letter of May 8.
The decision in the Ames case cites the Eagan, Minnesota
case and, in a way, emulates it by making the same gra-
tuitous reference to the so-called "Model Drug Para-
phernalia Act" which is being distributed by the U.S .
Drug Enforcement Administration and other Federal agen-
cies. A copy of this form of regulation is enclosed for
your consideration. I am not convinced that the DEA
"Model Act" is any less "vague" , that is, that it gives
any better notice of what is prohibited, than the or-
dinance enacted. Yet, it is possible that the courts
will view the DEA "Model Act" as less of a threat to
civil rights since it requires, for conviction, that it
be proven beyond a reasonable doubt that the person who
sells paraphernalia does so with the knowledge that the
item will actually be used in the taking of a controlled
substance. (See Art. II , Sec. B, Model Act) .
At the present time the Council ' s options are:
1 . To appeal the decision to the Eighth Circuit
Court of Appeals in St. Louis.
2 . To enact a different form of ordinance.
3 . To leave the field, at least temporarily.
I commend these to Council in reverse order, the last
option being the best legal advice.
It is theoretically possible that the Court of Appeals
might be persuaded to reverse the District Court' s deci-
sion. However, the likelihood of such occurrence must be
assessed as virtually nil in light of the analysis and
approach to the "vagueness" issue displayed by the Court
in Geiger v. Eagan. Therefore, the only reason for
appeal would be to get into position to make an applica-
tion for certiorari to the U. S. Supreme Court. However,
there are "paraphernalia cases" ahead of ours and no
basis for believing that the Ames case might be selected
for consideration by the Supreme Court. The Parma, Ohio
ordinance, patterned after the DEA Model Act and upheld
by the lower court is now under injunction by the 6th
Circuit Court of Appeal pending decision. An ordinance
from Woodbridge, New Jersey, also patterned on the DEA
Model Act and upheld by the lower court is on appeal to
the 3rd Circuit. However, the "Novi/Ferndale" ordinance
on which the Ames ordinance is based is not the subject
3
of an appeal for either city. The same form of ordinance
is now being litigated for the City of Livonia, Michigan,
again in the Eastern District of Michigan, where ap-
parently the issue is to be resolved on a 2 out of 3
basis.
As for a new ordinance, it is possible the courts might
view the DEA Model Act more favorably, but the one enact-
ed by the Ames City Council is as good as any I have seen
or can think of given the Council ' s policy objective.
The fact that the courts have made reference to the Model
Act in the dicta of decisions should not be relied on as
a declaration of judicial approval for I assure you if
you enact it and it is challenged, the court will not
feel so bound.
The option of leaving this field of regulation, at least
for now, should not be rejected quickly. Although the
Council is convinced, as am I , that the commercializing
of paraphernalia serves to encourage an illegal and
unhealthy practice, societal response and law in this
area is in a very early stage of development. It may
well be wisest to withdraw for the next six months to a
year, and then, after considering the experiences of
other cities, the response, if any, of the State legis-
lature, and the results of litigation in the appellate
courts, return to this area of concern at that time.
Respectfully submitted,
John R. Klaus
City Attorney
JRK/dls
Encl . 3
CIV 32
53) JUL 2
JUDGMENT ON DECISION BY TILE C01JRT
7
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,ct
Z)
FOR THE
SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION
CIVIL ACTION FILE No. 80-229--A
JAY MAGNANI , Individually, and ROIATND JESSE, Jr. ,
Individually collectively doing business as
T t
SIDS ' hEADSHOP : STEVEN Cie PROSSE ; and JO VIA NORTTL, iUDGMEINT
V.
CITY OF AMES , I014A
This action came on ,JX(hearin.)for g-
:,k-- Honorable W.
before the Court, How C. Stuart
United States District Judge, presiding _j�Ax
9 and the issues having beer). dulyytti
(heard) and a decision hiving been duly rendered,
It is Ordered and Adjudged that plaintiffs ' request for a preliminary
and permanent injunction 1,s hereby granted, and the Court enjoins the
City of Ames , Iowa, and its officers , agents , servants and employees ,
and all others in active concert or participation with them, from
enforcing the "Paraphernalia Regulations of the City of Ames.,"
X-A a
JUL 2 1. 00r,'1-nji
CLERK, U. S. DISTRIC-r COURT
SOUTHERN DISTRICT C-F 1014A
Dated at Des Moines , Iowa this 21st day
of July 19 80 -
..........
. .. .... . ...... .........
Clerk of Court
James R. Rosenbaum,
IN THE UNITED STAPES DISTRICT, COURT iC
SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION
A_ 2 ? 1980
JAY MAGNANI , Individually, and ) CLERK U.S.G:SthrC?COUR!"
ROLAND JESSE, JR. , Individually ) SOUTHE;i;,GIST;�rCTOr_�Ot�r.�
collectively doing business as )
SIDS ' HEADSHOP: STEVEN dePROSSE; )
and IOWA NORML, )
Plaintiffs, ) CIVIL NO. 80-229-A
VS. ) RULING AND ORDER
)
CITY OF AMES , IOWA, ) .
Defendant. ) s
The Court has before it a request by the plaintiffs for
preliminary and permanent injunctive relief from the enforcement of
a drug paraphernalia ordinance enacted by the City of Ames , Iowa.
A temporary restraining order was issued May 28 , 1980 . A hearing
was held on the merits of this matter on June 12 , 1980. The Court
has determined that it has jurisdiction pursuant to 42 U.S.C. S 1983,
28 U.S .C. S 2201-2202 and 28 U.S .C. § 1343 (a) .
Plaintiffs Jay Magnani and Roland Jesse, Jr. have owned
and operated "Sid ' s Head Shop" in Ames, Iowa for approximately
two and one-half years . The plaintiffs believe that some of the
goods sold may come under the ordinance, but allege that they are
unable to determine exactly what is covered by the ordinance. As a
result, the plaintiffs anticipate having to close their store out
of fear of prosecution because they cannot exactly determine what not
to sell . A resident of Ames who is a named plaintiff in this action,
Steven deProsse, also expressed apprehension that he may come under
the ordinance, but he is unable to determine if he does.
The ordinance provides in pertinent part:
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 '
Contolled 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 reasonably adapted or designed
is the smoking of marijuana or hashish, rather
than lawful smoking tobacco, and which ma_y or
may not be equipped with a screen.
(4) 'Paraphernalia ' : An empty gelatin capsule, hypo-
ermic syringe or needle, cocaine spoon, marijuana
pipe, hashish pipe, or any other instrument, imple-
ment, or device which is primarily adapted or
do--signed for the administration or use of a
controlled substance.
( 5) 'Person' : An individual, corporation, business
trust, estate, trust, partnership, or association.
SECTION THREE. Sale or Display 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.
The plaintiffs in their complaint allege that the ordin-
ance contains unconstitutionally vague terms , phrases , and definitions
and places constitutionally impermissible restrictions on the plain-
tiffs ' right to privacy, free speech, due process, and equal protection,
inter alia. Both parties in their briefs and at the hearing have
focused mainly on the issue of vagueness . The Court believes the
vagueness issue is the critical issue in this case and, in light of
the parties arguments at the hearing, the Court will limit its discussion .
to the issue of vagueness.
It has been well established that the doctrine of vagueness
is found within the due process clauses of the Fifth and Fourteenth
Amendments. As the Court in Grayned v. City of Rockford, 408 U.S. 104 ,
108-109 (1972) stated:
It is a basic principle of due process that an enact-
ment is void for vagueness if its prohibitions are
not clearly defined. Vague laws often offend several
important values. First, because we assume that a man
is free to steer between lawful and unlawful conduct,
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t
we insist that laws give the person of ordinary intelli-
gence a reasonable opportunity to know what is prohibited,
so that he may act accordingly. Vague laws may trap the
innocent by not providing fair warning. Second, if
arbitrary and discriminatory enforcement is to be pre-
vented, laws must provide explicit standards for those
who apply them. A vague law impermissibly delegates
basic policy matters to policemen, judges , and juries
for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discrim-
inatory application.
The Court in Geiger v. City of Eagan, 618 F. 2d 26 , 28
(8th Cir. 1980) , stated that " [d] ue process has two requirements :
that laws provide notice to the ordinary person. of what is prohibited
and that they provide standards to law enforcement officials to pre-
vent arbitrary and discriminatory enforcement. "
The notion of vagueness was also described in United States
v. Harriss, 347 U.S . 612, 617 (1953) , where the court stated:
The constitutional requirement of definiteness is
violated by a criminal statute that fails to give
a person or ordinary intelligence fair notice that
his contemplated conduct is forbidden by the statute.
The underlying principle is that no man shall be held
criminally responsible for conduct which he could not
reasonably understand to be prescribed.
Several courts have passed on the issue of whether particu-
lar "drug paraphernalia" ordinances are constitutional . 1 Two cases,
in particular, addressed an ordinance in which the pertinent sections
were identical to those in the present case.
The court in Tobacco Road v. City of Novi, No. 79-71000
(E.D. Mich. June 21, 1979) , examined several constitutional attacks
to the ordinance and found the ordinance to be constitutional.
In regard to the issue of vagueness, the court held that
" [a] s defined in the challenged ordinance, the terms marijuana or
hashish pipe, cocaine spoon, and paraphernalia are sufficiently definite
to provide the plaintiff with fair notice of what items cannot
1 . Geiger v. City of Eagan, 618 F. 2d 26 (8th Cir. 1980) ; Smith v.
Roark.. No. 80-21110 (S .D. Va. May 13 , 1980) ; Record Revolution
No. 6, Inc. v. City of Parma, Ohio, et al. , No. C80-38 (N.D.
., Ohio April 14 , 1980) ; Music Stop, Inc. v. City of Ferndale,
488 F. Supp. 390 (E.D. Mich. April 9, 1980) ; Indiana Chapter
Norml, et al. v. Sendak, et al. , No. TH 75-142-C (S .D. Ind.
February 4 , 1980) (en banc) ; Weingart v. The Town of Oyster
Bay, No. 79 C 2932 (E.D. N.Y. December 17 , 1979) ; Tobacco
Road v. City of Novi, No. 79-71000 (E.D. Mich. June 20, 1979) .
See also Geiger v. City of Eagan, 618 F. 2d 26 , 28 n. 5 (8th
Cir. 1980) .r
- 3 -
be sold, displayed or otherwise distributed. " Id. at 14 .
In Tobacco Road, supra, the Court relied on McGowan v.
Maryland, 366 U. S. 420 (1961) . McGowan involved a statute which
exempted from the Sunday closing laws retail sales of " 'merchandise
essential to, or customarily sold at, or incidental to� the operation
of bathing beaches amusement parks , et cetera. " Id. at 428 . The
court in Tobacco Road quoted the following found in McGowan v Maryland-
We believe that business people of ordinary - intelligence
in the position of appellant' s employer would^be able
to know what exceptions are encompassed by tha statute
either as a matter of ordinary commercial knowledge or
by simply making a reasonable investigation at a nearby
bathing beach or amusement park within the county.
Tobacco Road v. City of Novi, at 13 . In regard to this holding, the
court was "persuaded that a reasonably accertainable standard of
conduct is presented by the ordinance" , and it is the retailers
responsibility to insure that his actions do not fall outside the
legal limits. Tobacco Road v. City of Novi, at 18 .
Approximately ten months later, the United States District
Court for the Eastern District of Michigan, in Music Stop, Inc. v.
City of Ferndale, 488 F. Supp. 390 (E.D. Mich. 1980) , once again was
faced with a constitutional challenge to an ordinance which in
pertinent part was identical to the ordinance in Tobacco Road and
the one in the present case. In Music Stop, the court held that the
ordinance was unconstitutionally vague. The court also relied on
McGowan v. Maryland, 366 U. S . 420 (1961) , but in applying McGowan the
court stated that " [n ] o objective standard of reference for the term
[a bowl] ' so small ' is offered by the ordinance. " Music Stop, Inc.
v. City of Ferndale, 488 F. Supp. at 393. The court also stated that
" [c] ertainly no fixed extrinsic reference point appears to exist
which could be relied upon to alert the potential retailer of ordinary
intelligence and prudence, or provide a sliding scale for measurement
of primary and secondary design intent. "Id. It is also significant that
the court in Music Stop stated that " [i] t is noteworthy that the
intent or foreknowledge of the retailer itself is a total irrelevancy
to the criminal liability under this ordinance. " Id. In concluding
that the ordinance was unconstitutionally vague, the court stated that
4 -
as "has undisputedly been the case in [Tobacco Road] , such uncertainty
leads inevitably to subjective, arbitrary, and discriminatory law
enforcement, and delegates municipal policy making to police officers
/ and to judges . " Id. at 394 .
This Court, having given careful consideration to the ,
rationales stated in Tobacco Road and Music Stop, along with the
testimony given at the hearing, finds itself to be in accord with
Music Stop and holds that the City of Ames ordinance, - in question,
is unconstitutionally vague.
At the hearing, plaintiff Magnani testified that the greatest
ambiguity comes from the ordinance' s definition of "marijuana or
hashish pipe" . In regard to this, the greatest confusion centered
around what is meant by a bowl which is "so small" that the primary
use for which it is designed is smoking of marijuana or hashish, rather
that smoking tobacco. The main point of confusion was directed at
what point a bowl becomes "so small" . Generally, the witnesses were
able to distinguish the parameters of the size of bowls, but were
unable to say for sure at what point a bowl was "so small" as to be
in violation of the ordinance.
There was also confusion as to what is meant by a "cocaine
spoon" . Once again the question became how small must the spoon' s
bowl be in order to come under the ordinance, and the witnesses
appeared unable to make this determination.
From this testimony, it is apparent that the Ames ordinance
does not provide sufficient guidance as to what is covered under the
ordinance. An ordinary person would not have sufficient notice of
what is prohibited by the ordinance. Thus, the first standard set
forth in Grayned indicates that the ordinance is unconstitutionally
vague.
The second requirement under Grayned is that the ordinance
must provide sufficient standards to law Enforcement officals to
prevent arbitrary and discriminatory enforcement. Grayned v. City of
Rockford, 408 U.S , at 106-107.
- 5 -
At the hearing, the detective in charge of enforcing th3
Ames ordinance testified that he had no doubt as to what is "drug
paraphernalia" . He also testified that he knew what to look for,
* but he did admit that he had little training in narcotics. During
his testimony, however, the detective was unable to determine at what
.point a bowl became "so small" as to be covered under the ordinance.
When shown a meershaum pipe he stated that, due to its small bowl
size, it would be prohibited by the ordinance. This was in conflict
with the testimony of an owner of a pipe and tobacco shop which had '
been in business for approximately twenty-three years. The owner
testified that she believed the meershaum pipe would not be covered
under the ordinance. During his testimony the police officer was
unable to specify the size or types of items which would be prohibited
by the ordinance. In particular, the officer was unable to state
how small a particular bowl would have to be before it would be
covered by the ordinance.
This once again illustrates the problem of vagueness which
is inherent in this particular ordinance. The uncertain testimony
given by the police officer indicates that the vague wording of the
ordinance could lead to discriminatory and arbitrary enforcement.
Although there was other testimony illustrating the problem
of vagueness in the ordinance, this Court does not believe that such
testimony need be specifically recounted in this ruling and order.
The fact that this Court has limited its discussion to only a portion
of the ordinance does not indicate that the remaining portions are
either constitutional or unconstitutional.
In addition, the fact that this Court has determined that
the present City of Ames ordinance is unconstitutional does not mean
that a valid ordinance regulating sale of drug paraphernalia cannot
be enacted. As the court in Geiger V. City of Eagan, 618 F. 2d 26 ,
28 (8th Cir. 1980) stated: " [A city] clearly has the power through
a properly drawn ordinance to discourage the availability of drugs
and the acceptance of drug use by prohibiting the sale of drug-
related devices. " In making this statement the court in Geiger,
6 -
through a footnote, referred to the Model Drug Paraphernalia Act
which was drafted by the Drug Enforcement Administration of the
U. S . Department of Justice as an example of such a statute. Geiger
v. City of Eagan, 618 F. 2d 26, 28 n. 4 (8th Cir. 1980) . The Act
,,J,as drafted in August, 1979 .
This Court finds the City of Ames ' ordinance to be
unconsitutionally vague and hereby grants the plaintiffs ' request
for preliminary and permanent injunction. The matter ofF• attorneys'
fees may be raised at a later date �.
Y pursuant to a motion supported
by affidavits.
IT IS THEREFORE ORDERED that the plaintiffs ' request for
a preliminary and permanent injunction is hereby granted, and the Court
enjoins the City of Ames , Iowa, and its officers, agents, servants
and employees, and all others in active concert or participation
with them, from enforcing the "Paraphernalia Regulations of the
City of Ames" .
Signed this � r` day of July, 1980 .
W. C. STUA T, CHIEF JUDGE
SOUTHERN DISTRICT OF IOWA.
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� f
ARTICLE I
(Definitions)
f
1 SECTION (insert designation of definitional section)
2 of the Controlled Substances Act of this State is
3 amended by adding the following after paragraph (insert
4 designation of last definition in section) :
5 " ( ) The term ' Drug Paraphernalia' means all eauip-
6 ment, products and materials of any kind which are used,
7 intended- for use, or designed for use, .in planting,
8 propagating, cultivating, growing, harvesting, manufac-
9 turing, compounding, converting, producing, processing,
10 preparing, testing, analyzing, packaging, repackaging,
11 storing, containing, concealing, injecting, ingesting, t
12 inhaling, or otherwise introducing into the human body
13 a controlled substance in violation of this Act (mean-
14 ing the Controlled Substances Act of this State) . It E
15 includes, but is not limited to: E
16 (1) Kits used, intended for use, or designed for
17 use in planting, propagating, cultivating, growing or
18 harvesting of any species of plant which is a con-
19 controlled substance or from which a controlled substance
20 can be derived;
21 (2) Kits used, intended for use, or designed for
22 use in manufacturing, compounding, converting, pro-
23 ducing, processing, or preparing controlled substances;
24 (3) Isomerization devices used, intended for use,
25 or -signed for use in increasing the potency of any
26 species of plant which is a controlled substance;
27 (4) Testing equipment used, intended for -use, or
28 designed for use in identifying, or in analyzing the
29 strength, effectiveness or purity of controlled sub- r .
30 stances;
31 (5) Scales and balances .used, intended for use, -
32 or designed for use in weighing or measuring controlled
33 substances;
34 (6) Diluents and adulterants , such as quinine
35 hydrochloride, mannitol, mannite, dextrose and lactose ,
36 used, intended for use, or designed for use in cutting
37 controlled substances;
38 (7) Separation gins and sifters used, intended .
39 for use, or designed for use in removing twigs and
40 seeds from, or in otherwise cleaning or refining,
41 marihuana; '
42 (8) Blenders, bowls, containers, spoons and
43 mixing devices used, intended for use, or designed
44 for use in compounding controlled substances;
_ _ - ..t -_ .�.. _ - - - ^.� .=, ,.a?+ew-1. ,..4--` w`•---y o^.'Tp.<T asc: •..i-..i
i
45 (9) Capsules , balloons , envelopes and other con-
46 tainers used, intended for use, or designed for use
47 in packaging small quantities of controlled substances;
48 (10) Containers and other objects used, intended
49 for use, or designed for use in storing or concealing t
50 controlled substances;
51 All) Hypodermic syringes , needles and other
52 objects used, intended- for use , or designed for use
53 in parenterally injecting controlled substances into
54 the human body; i
55 (12) objects used, intended for use, or designed.
56 for use in ingesting, inhaling, or otherwise intro-_
57 ducing marihuana, cocaine, hashish, or hashish oil
58 into the human body, such as :
acrylic , g
59 (a) Metal, wodden, glass, stone,
60 plastic, or ceramic pipes with or without C
61 screens, permanent screens , hashish heads, or
62 punctured metal bowls;
63 (b) Water pipes;
64 (c) Carburetion tubes and devices;
65 (d) Smoking and carburetion masks;
66 (e) Roach clips : meaning objects used to f
67 i, )ld burning material, such as . a marihuana
68 cigarette, that has become too small or too
69 short to be held in the hand;
70 (f) Miniature cocaine spoons , and cocaine
71 vials;
72 (g) Chamber pipes;
73 (h) Carburetor pipes ;
74 (i) Electric pipes; i
75 (j) Air-driven pipes ;
76 (k) Chilluris ;
77 (1) Bongs;
'78 (m) Ice pipes or chillers;
79 "In determining whether an object is Drug parapher-
80 nalia, a court or other authority should consider, in
81 addition to all other logically relevant factors , the
82 following:
83 (1) Statements by an owner or by anyone in con-
84 trol of the object concerning its use;
85 (2) Prior convictions , if any, of an owner, or
86 of anyone in control of the object, under any State
87 or Federal law relating to any controlled substance;
88 (3) The proximity of the object, in time and
89 space, to a direct violation of this Act; {
90 (4) The proximity of the object to controlled f
91 substances;
2
77.. .4.{++c'ctc•,' ¢7'F-- 6KCJ4T`y �• +y j"1 �. i ...s.,{}s� z r ,« - <!}-.. ";'-• „a. i
;'"''"_•a i'° __:_ L..�a .,..r p L-f a i�-.�.�xcs-`�_'� t. � a a S,y«c
_ k.-,. _.� Y «"' J .,IS PY�X .»f'!_r - .al� '._'i_4 �.,_ C_....�.ls_..._.. � _ _ .. •-._ +`L.`V!'. _ -r �. ; S
92 (5) The existence of any residue of controlled
93 substances on the object; I
94 (6) Direct or circumstantial evidence of the
95 intent of an owner, or of anyone in control -of the
96 object, to deliver it to persons whom he knows, or
97 should reasonably know, intend to use the object to
98 facilitate a violation of this -Act; the innocence of
99 an owner, or of anyone in control of t
1 he object, as
00 to a direct violation of this Act shall not prevent
101 a finding that the object is intended for use, or
102 designed •for use as Drug paraphernalia;
103 (7) Instructions, oral or written
104 the object concerning its use; Provided with
105 (8) Descriptive materials accom an 106 which explain or depict its use; P ying the object
107 (9) - National and local advertising 108 use; concerning its
109 (10) The manner in which the object is displayed
11.0 for sale;
111 (11) Whether the owner, or anyone in control of
112 the object, is a legitimate supplier of like or related
113 items to the communit
y, such as a licensed distributor
114 or dealer of tobacco products;
1.15 (12) Direct or circumstantial evidence of the rat '
116 of sales of the object (s) to the total sles o to
a
117 business enterprise; f the
118 (13) The existence and scope of i
le it
119 for the object in the community; legitimate uses
120 (14) Expert testimony concerning its use. "
ARTICLE II
(Offenses and Penalties)
1 SECTION (designation of offenses and
2 of the Controlled Substances Act of thiseStates
section)
State is amended
3 by adding the following after i
(de
sgnation of
4 stantive offense) ; last sub-
2 "SECTION (A) (Possession of Drug Paraphernalia)
j
It is unlawful for an Phernalia)
3 possess with intent to use,y aruSOn to use, or to ��' r`' �►
4 plant, propagate g Paraphernalia to ae • F
5 cultivate
grow, harvest, manu- 3 � �
facture, compound, .convert
6 pare, test , Produce, process `=7 analyze, pack, repack, , pre-
conceal, inject, in est P store, contain, '
8 , inhale y.�..-
introduce into the human body ' °r otherwise
in violation of this Act. a controlled substancey.,
Any person who violates
3 ar
S
1
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.., _•S �^x l"3 S' 3"' 'a'`� „ t r� `s.-i'l Y�t.,.,�k��i -.,. � s� 3 c-nr F 1} b'F ,+'?/ i�i✓'' ��.�L �ti�
... _ � �� ''R-'���'''�.:..'���-ar�'..�.. 7�1 as-.,���.r-._. T_^,.,. ,-:C 1 �.:�_ c+ - -�.-._ r . "t• ki.;, -"P n'.,�..h �... iiiLLL
10 this section is guilty of a crime and upon con-
1-1 viction may be imprisoned for not more than ( ) ,
12 fined not more than ( ) , or both. "
1
"SECTION (B) (Manufacture or Delivery of Drug
2 - Paraphernalia) R
3 It is unlawful for any person to deliver, E
4 possess with intent to deliver, or manufacture
5 with intent to deliver, drug paraphernalia,
6 knowing, - or under circumstances where one rea j
7 sonably should know, that it will be used to
8 plant, propagate, 'Cultivate, grow, harvest, man.u-
9 -facture, compound, convert, produce, process,
10 prepare, test, analyze, pack, repack, store, con- {'{
11 tain, conceal, inject, ingest, inhale, or other- f
12 wise introduce into the human body a controlled
1.3 substance in violation of this Act. Any person
14 who violates this section is guilty of a crime
15 and upon conviction may be imprisoned for not
16 more than ( ) , fined not more than ( ) , or both. "
F
1 "SECTION (C)- (Delivery of Drug Paraphernalia to
2 a Minor)
3 Any person 18 years of age or over who
4 violates Section (B) by delivering drug parapher-
5 nalia to a person under 18 years of age who is at
6 .least 3 years his junior is guilty of a special
7 offense and upon conviction may be imprisoned for
8 not more than ( ) , fined not more than ( ) , or
9 both. "
1 "SECTION (D) (Advertisement of Drug Paraphernalia)
2 It is unlawful for any person to place in
3 any newspaper, magazine, handbill, or other publi-
4 cation any advertisement, knowing, or under circum-
5 stances where one reasonably should know, that the
6 purpose of the advertisement, in whole or in part, E
7 is to promote the sale of objects designed or
8 intended for use as drug paraphernalia. An
-9 who violates this" section is guilty of a crime 'and
10 upon conviction may be imprisoned for not more than
11 ( ) , fined not more than `k
( ) , or both. "
ARTICLE III
(Civil Forfeiture) ` '
1 SECTION (insert designer r Lion o� civil forfeiture section) ,-;� •,;�
2 of the Controlled Substances Act of this State is amended -r
qs_
4 �{
:� ���.' r. �� -.i,.,�ii-r}'7a��eo� ''�'-`S:�'-^ sq*`��c -►�r'aa� ar+...f; ,rs+r.� v.
- �,``#'� @,,: r.. r �'�rY ,�-�.. �,ri �.y_F•>S't,.� �-4 K �-.� 1�; F5 ,(4._. r rti y, ti
.. _ - - .�°-��.`�:sa• .. -. ., ,�_::F .!!�._:�.. _�= ,_L.xar _,;,�,<.._ �-.-a�'f .r:. ,�,. ..s x .-r sr' dr � " �.._l
3 to provide for the civil seizure and forfeiture of drug
4 paraphernalia by adding the following after paragraph
5 (insert designation of last category of forfeitable
6 property) :
7 " ( ) all drug paraphernalia as defined by Section
8 ( ) of this Act. "
ARTICLE IV
(Severability)
1 If any provision of this Act or the application
2 thereof to any person or circumstance is held invalid,
3 the invalidity does not affect other provisions or f
4 applications of the Act which can be given effect
5 without the invalid provision or application, and to
6 this end the provisions of this Act are severable.
5
Y-.`�i; °i'+x.��r'3s�s_.. :��_`'.�°.e_,1�✓�t'M.
.
t�
IN THE UNITED STATES DISTRICT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION
JAY MAGNANI, individually,
� I
and ROLAND JESSE, JR. , x
individually, collectively x NO. 80--229-A
doing business as SIDS '
HEADSHOP; STEVEN dePROSSE; X
AND IO;-JA NORML,
Plaintiffs,
VS .
CITY OF AMES, IOWA
* DEFENDANT I S SECOND
* BRIEF AND ARGUMENT
Defendant.
Defendant filed a Brief of Law with the court on
the date of hearing, June 12 , 1980 . This second Brief, and
Argument, is in response to the "Plaintiff' s Memorandum"
filed with the court on June 19, 1980 .
The City Council of the City of Ames enacted City
Ordinance No. 2749 , effective on May 21, 1980 . (copy It-
tached as Appendix A) This ordinance is narrow in its
and modest in its goals . It does not attempt to prohibit or
regulate all the myriad forms of drug paraphernalia. The
ordinance of the Defendant City of Ames does not purport or
attempt to regulate all the items that are used, intended
for use, suitable for use, adaptable to use, or useful in
the taking or administering of controlled substances . The
fact that common, lawful articles can, without need for
adaptation, be put to some use in the taking or adminis-
tering of a controlled substance is not a concern to which
the Defendant' s ordinance is directed. The ordinance fo-
cuses only on those things primarily designed for adminis-
tering drugs .
2
Plaintiff's attack on the ordinance relies, for
the most part, on the doctrine of vagueness, and specifi-
cally on the definition of two items of proscribed para-
phernalia: the so-called marijuana or hashish pipe, and the
cocaine spoon.
With regard to the pipes, much is made of the fact
that neither the ordinance nor any of the Defendant' s wit-
nesses at the hearing provide a scientifically precise
measure of how small is
" . . . so small that the primary use for
which it is reasonably adapted or de-
signed is the smoking of marijuana or
hashish. "
However, the Defendant' s witness, Esther Bohlender, ex-
perienced by years in the pipe and smokers ' articles busi-
ness with both tobacco pipes and marijuana or hashish pipes
testified that the smallness of the bowl is a distinguishing
characteristic of a marijuana or hashish pipe. She also
testified:
1. That there is no chance that anyone in the
pipe business would confuse a marijuana pipe with a tobacco
pipe.
2. That although some tobacco pipes have smaller
bowls than others, and a tobacco smoker may choose to have a
small bowled pipe for "quick smokes" , no tobacco smoker
would want a small bowled marijuana pipe to smoke tobacco
in.
The Defendant' s witness Ballantine, a police
officer, correctly identified a Meerschaum pipe fitted with
a gold screen in its bowl as an item of proscribed para-
phernalia. The witness Bohlender confirmed that although
the Meerschaum was a tobacco pipe, by fitting it with a
screen in the base of its bowl it became adapted for smoking
marijuana and was no longer suitable for smoking tobacco.
Bohlender further explained that although the Meerschaum was
3
well known to her and any pipe dealer and, to all pipe
smokers of experience and cultivated taste, it was not a
common pipe. Therefore, Defendant hopes that the witness
Ballantine' s error and confusion when the screen was removed
from the Meerschaum can be forgiven. The officer is pre-
sumably educable.
The proper standard on the vagueness issue is that
a law gives warnings sufficient to enable a person in the
conduct of his or her affairs to avoid that which is for-
bidden. Flipside, Hoffman Estates, Inc. v Village of Hoff-
man_Estates, 485 F. Supp. 400, 405 (1980) Appendix B; Tobacco
Road v City of Novi, F. Su ,
___ pp. No . 79-71000,
E.D. Mich. , June 32, 1979 (Appendix C) . In that regard
Defendant' s ordinance gives a fair notice to pipe and para-
phernalia vendors, such as Plaintiffs Magnani and Jesse, as
to what is proscribed. As for the Plaintiff deProsse' s fear
that he might inadvertently furnish a marijuana pipe to his
grandfather; it is submitted that an ordinance to regulate
the sale and display of those things could prevent such a
predicament in the future.
Similarly, the Plaintiffs find fault with the
ordinance ' s definition of a cocaine spoon as one:
" . . . which is so small as to be un-
suited for the typical lawful uses of
the spoon. "
Yet, Defendant submits that the item identified by Captain
Ballantine as a cocaine spoon is patently unsuited for the
typical lawful uses of the spoon. That such an article
could be by some means fashioned into an item of jewelry,
such as by affixing it to a pin or onto a necklace or brace-
let, does not detract from the fair notice given by the
4
ordinance that the sale or display of such a spoon is for-
bidden because of the primary use for which it is designed.
Therefore, as defined in the subject ordinance,
the terms marijuana or hashish pipe, cocaine spoon and
paraphernalia are sufficiently definite to provide the
Plaintiffs with a fair and reasonable notice of what is
prohibited. The Plaintiffs knew well that the Meerschaum
pipe, although not a marijuana or hashish pipe, is when
fitted with a screen, an item of "paraphernalia" ; that is,
an instrument primarily adapted for the use of marijuana, a
controlled substance. Vlhether such exotica as the "power
hitter" is a pipe or not is of little importance. It is
patently a contrivance designed primarily for the adminis-
tration of a controlled substance.
Constitutional challenges on vagueness grounds
which do not involve First Amendment freedoms must be ex-
amined in light of, the facts applied to the case at hand.
See United States v Powell, 423 U. S . 87, 96 S .Ct. 316, 46
L.Ed. 228 (1975) ; Tobacco Road v City of Novi, supra. The
fact that there may, on occasion, be marginal cases in which
there is a reasonable doubt as to whether or not the parti-
cular fact situation is a violation of the ordinance does
not justify declaring the ordinance to be unconstitutionally
vague on its face. As was stated in the case of Flipside,
Hoffman Estates, Inc. v Village of Hoffman Estates, supra:
"In determining whether a statute or
ordinance is vague, a court should bear
in mind that the office of judges is
always to make such construction as to
suppress the mischief which is the
object of the law and advance the reme-
dy; and to suppress subtle inventions
and evasions for continuance of the
mischief. "
Some element of "vagueness" can be injected into almost any
5
statute. The effort to define even commonplace items in
English words can be extremely difficult. The standard in
this regard is a reasonable one and pe fection is not re-
quired. '
On the other hand, the law does require the Plain-
tiffs to bear the burden of proving facts sufficient to
establish that people of ordinary intelligence in the posi-
tion of the respective Plaintiffs will not have a reasonable
and fair notice of what is prohibited. It does not appear
that the Plaintiffs have carried that burden of proof.
Respectfully submitted,
AoILN.
Klaus
City Attorney
5th & Kellogg
Ames, Iowa 50010
ATTORNEY FOR DEFENDANT
XG:Iesrv"d hereby certifies that a true � S
U;ta= ir.strumem Was served upon each of the attorne" d
60
,oc&rd of ou parties to the above-entitled suss b! s
n' Sint
tha same in an envelope addressed to each s'-rch attorney at
Ms respective address as disclosed by the pleaj�rgs of record
t�wcii, H ih postage fulli paid and by depositing said a Nelope
a U.,i.sd ssqiates-Post office de--itory in
'. :ra, 00 tfti�c I daY of---