FLIPSIDE, ETC. v. Village of Hoffman Estates

• Decision Date: 11 February 1980
• Docket Number: No. 78 C 2114.,78 C 2114.
• Parties: The FLIPSIDE, HOFFMAN ESTATES, INC., an Illinois Corporation, Plaintiff, v. VILLAGE OF HOFFMAN ESTATES, Illinois, a Municipal Corporation et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

485 F. Supp. 400

The FLIPSIDE, HOFFMAN ESTATES, INC., an Illinois Corporation, Plaintiff, v. VILLAGE OF HOFFMAN ESTATES, Illinois, a Municipal Corporation et al., Defendants.

No. 78 C 2114.

United States District Court, N. D. Illinois, E. D.

February 11, 1980.

COPYRIGHT MATERIAL OMITTED

Michael L. Pritzker, Marvin Leavitt, R. Brent Daniel, Pritzker and Glass, Ltd., Chicago, Ill., for plaintiff.

Richard N. Williams, Hoffman Estates, Ill., for defendants.

Memorandum

LEIGHTON, District Judge.

This suit is against a village, several of its officials, and its trustees, for injunctive relief, damages, and a judgment declaring that a certain village ordinance is unconstitutional. Jurisdiction of this court is invoked under 28 U.S.C. §§ 1331, 1343(3) and (4). The ordinance in question requires that any person who, within the village, sells an item, effect, paraphernalia or thing which is designed or marketed for use with illegal cannabis or drugs must obtain a license for $150.00, file affidavits averring that the intended licensee and its employees have never been convicted of a drug related offense, and keep records which on inspection will disclose to the police each item sold and to whom. The sale of such items to minors is prohibited; and the ordinance provides for a fine of not less than $10.00 and up to $500.00 for any violation of its terms.

Plaintiff alleges in its complaint that this ordinance is vague, overbroad, capable of being arbitrarily enforced, and not reasonably related to any legitimate governmental objective of the village in controlling drug abuse. It claims that enactment and enforcement of the ordinance will deprive plaintiff of rights guaranteed by the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution, and that the terms of the ordinance when applied to the plaintiff violate the First Amendment and the commerce clause of the Constitution. On filing of its suit, plaintiff moved for a preliminary injunction which after a hearing the court denied. Then the cause was tried without a jury on the presented evidence and stipulated testimony. The following are the material facts.

I.

The plaintiff in this case is Flipside, Hoffman Estates, Inc., an Illinois corporation engaged in interstate commerce as Flipside Records, 2348 West Higgins Road in the village of Hoffman Estates, Illinois. Defendants are the village, an Illinois home rule municipality that has a population of approximately 37,000; and in their individual as well as official capacities, Virginia M. Hayter, village president; Richard Williams, village attorney; John O'Connell, village chief of police; William W. Cowin, William A. Palmer, Bruce C. Lind, Ralph H. Lyerla, Thomas W. Taylor, Lee Dogion, village trustees.

For more than three years prior to May 1, 1978, plaintiff sold phonograph records, tapes, record accessories, novelty devices, and jewelry. In addition, it sold literature that included "A Child's Garden of Grass", "Marijuana Grower's Guide", and magazines such as "National Lampoon", "Rolling Stone", and "High Times". The novelty devices and tobacco-use related items plaintiff displayed and sold in its store ranged from small commodities such as clamps, chain ornaments, and earrings through cigarette holders, scales, pipes of various types and sizes, to large water pipes, some designed for individual use, some which as many as four persons can use with flexible plastic tubes. Plaintiff also sold a large number of cigarette rolling papers in a variety of colors. One of plaintiff's displayed items was a mirror, about seven by nine inches with the word "Cocaine" painted on its surface in a purple color. Plaintiff sold cigarette holders, "alligator clips", herb sifters, vials, and a variety of tobacco snuff.

The defendant village, for a long time prior to the date of this controversy, regulated more than 80 items or businesses, including florists, grocers and other merchants. Licensing of the sale of these items was governed by a municipal code which on October 3, 1977 was amended to provide for an administrative review procedure within the village. Under this amendment, the action of any village department could on request of an aggrieved person be placed on the agenda of an appropriate committee for review.

On February 20, 1978, an authorized quorum of the village trustees acted on the following proposal.

ORDINANCE NO. 969-1978

AN ORDINANCE AMENDING THE MUNICIPAL CODE OF THE VILLAGE OF HOFFMAN ESTATES BY PROVIDING FOR REGULATION OF ITEMS DESIGNED OR MARKETED FOR USE WITH ILLEGAL CANNABIS OR DRUGS

WHEREAS, certain items designed or marketed for use with illegal drugs are being retailed within the Village of Hoffman Estates, Cook County, Illinois, and

WHEREAS, it is recognized that such items are legal retail items and that their sale cannot be banned, and

WHEREAS, there is evidence that these items are designed or marketed for use with illegal cannabis or drugs and it is in the best interests of the health, safety and welfare of the citizens of the Village of Hoffman Estates to regulate within the Village the sale of items designed or marketed for use with illegal cannabis or drugs.

NOW THEREFORE, BE IT ORDAINED by the President and Board of Trustees of the Village of Hoffman Estates, Cook County, Illinois as follows:

Section 1: That the Hoffman Estates Municipal Code be amended by adding thereto an additional section, Section 8-7-16, which additional section shall read as follows:

Sec. 8-7-16 — ITEMS DESIGNED OR MARKETED FOR USE WITH ILLEGAL CANNABIS OR DRUGS

A. License Required:

It shall be unlawful for any person or persons as principal, clerk, agent or servant to sell any items, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs, as defined by Illinois Revised Statutes, without obtaining a license therefor. Such licenses shall be in addition to any or all other licenses held by applicant.

B. Application:

Application to sell any item, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs shall, in addition to requirements of Article 8-1, be accompanied by affidavits by applicant and each and every employee authorized to sell such items that such person has never been convicted of a drug-related offense.

C. Minors:

It shall be unlawful to sell or give items as described in Section 8-7-16A in any form to any male or female child under eighteen years of age.

D. Records:

Every licensee must keep a record of every item, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs which is sold and this record shall be open to the inspection of any police officer at any time during the hours of business. Such record shall contain the name and address of the purchaser, the name and quantity of the product, the date and time of the sale, and the licensee or agent of the licensee's signature, such records shall be retained for not less than two (2) years.

E. Regulations:

The applicant shall comply with all applicable regulations of the Department of Health Services and the Police Department.

Section 2: That the Hoffman Estates Municipal Code be amended by adding to Sec. 8-2-1 Fees: Merchants (Products) the additional language as follows:

                Items designed or marketed for use
                with illegal cannabis or drugs      $150.00
                

Section 3: Penalty. Any person violating any provision of this ordinance shall be fined not less than ten dollars ($10.00) nor more than five hundred dollars ($500.00) for the first offense and succeeding offenses during the same calendar year, and each day that such violation shall continue shall be deemed a separate and distinct offense.

The ordinance was adopted, effective May 1, 1978. To it was attached the form of affidavit which an applicant for the required license was to execute concerning absence of any conviction of a drug related offense. The form of record which had to be kept showing sales of items designed or marketed for use with illegal cannabis or drugs was also attached to the enactment. A short time later, before the suit in this case was filed, the village attorney prepared a set of license guidelines which became an integral part of the ordinance.

LICENSE GUIDELINES FOR ITEMS, EFFECT, PARAPHERNALIA ACCESSORY OR THING WHICH IS DESIGNED OR MARKETED FOR USE WITH ILLEGAL CANNABIS OR DRUGS

Paper — white paper or tobacco oriented paper not necessarily designed for use with illegal cannabis or drugs may be displayed. Other paper of colorful design, names oriented for use with illegal cannabis or drugs and displayed are covered.

Roach Clips—designed for use with illegal cannabis or drugs and therefore covered.

Pipes—if displayed away from the proximity of nonwhite paper or tobacco oriented paper, and not displayed within proximity of roach clips, or literature encouraging illegal use of cannabis or illegal drugs are not covered; otherwise, covered.

Paraphernalia—if displayed with roach clips or literature encouraging illegal use of cannabis or illegal drugs it is covered.

Soon after the enactment of the ordinance, plaintiff was notified that it was subject to the terms of the ordinance, and that sales of the items covered without complying with the terms would be a violation and subject plaintiff to its penalties. A copy of the ordinance and the guidelines were available to the plaintiff and those who protected its interests. Plaintiff chose not to apply for the license required. Instead, acting through its agents and employees, it elected to remove from the shelves of its store more than eighty items which were believed to fall within the terms of the ordinance. Then plaintiff, on May 30, 1978, filed this suit alleging that the ordinance in question was vague and thus void; that its terms violated Article I of the Constitution of the United States in that it interferred with ...