Stoianoff v. State of Montana

Decision Date30 December 1981
Docket NumberNo. CV 81-140-M.,CV 81-140-M.
Citation529 F. Supp. 1197
PartiesWilliam STOIANOFF, d/b/a The Joint Effort, Plaintiff, v. The STATE OF MONTANA and Mike Greely, Attorney General for the State of Montana, Defendants.
CourtU.S. District Court — District of Montana

COPYRIGHT MATERIAL OMITTED

Dierdre Boggs, Missoula, Mont., for plaintiff.

Chris D. Tweeten, Asst. Atty. Gen., Helena, Mont., for defendants.

OPINION AND ORDER

RUSSELL E. SMITH, District Judge.

William Stoianoff, d/b/a "The Joint Effort," seeks to declare the Montana Paraphernalia Act (1981 Mont.Laws, ch. 481) unconstitutional and to enjoin its enforcement.

The Montana Legislature enacted without substantial change the provisions of a so-called "model act," which was designed by the Federal Drug Enforcement Administration to overcome what some courts considered to be constitutional infirmities in other acts. The purpose of the drug paraphernalia acts is to put out of business those commercial establishments, known in the vernacular as "head shops," catering to the mechanical needs and desires of drug users. The right of society to control such use is not questioned. Section 4 of the Act provides:

It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia, knowing or under circumstances where one reasonably should know that it will be used for drug-related purposes.

(Emphasis supplied.)

Section 1 of the Act states:

The term "drug paraphernalia" means all equipment, products, and materials of any kind that are used, intended for use, or designed for use for drug-related purposes.

It contains a nonexclusive list of twelve types of drug paraphernalia. Some of these, chosen at random, are:1

Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant that is a dangerous drug;
Dilutents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose, used, intended for use, or designed for use in cutting dangerous drugs;
Blenders, bowls, containers, spoons, and mixing devices used, intended for use, or designed for use in compounding dangerous drugs;
Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil, or other dangerous drug as defined by 50-32-101 into the human body, such as:
smoking and carburetion masks;
roach clips, meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand;
chamber pipes.

Most, if not all, of the items which are listed in the statute could be used for purposes which are not connected with drug business or drug use.

The Act in Section 2 lists thirteen factors, in addition to all relevant factors, which can be considered in determining whether an article is "drug paraphernalia." Some of the considerations, chosen at random, are:2

Statements by an owner or by anyone in control of the object concerning its use;
The proximity of the object to dangerous drugs;
Instructions, oral or written, provided with the object concerning its use;
Direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise;
The existence and scope of legitimate uses for the object in the community.

All of these factors would be relevant to a determination of the intent of the possessor.

Here, as in the other cases involving drug paraphernalia, the Act is attacked on the ground that it is vague and overbroad, and here, as in the other cases, the attack is facial; that is, the courts are asked to determine whether the Act is on its face vague so that hypothetical persons would not know what is forbidden. This difficulty is compounded by the fact that many, if not most, of the things that could be considered to be drug paraphernalia are commonly used for legitimate purposes, and even the few items which are highly suggestive of drug use could be found to have legitimate uses. Under these circumstances the courts have come to varying conclusions.

In Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916 (6th Cir. 1980), vacated and remanded, 451 U.S. 1013, 101 S.Ct. 2998, 69 L.Ed.2d 384 (1981), the Court of Appeals found the act to be impermissibly vague. In Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981), cert. docketed, 50 U.S.L.W. 3157 (Sept. 15, 1981), the Court of Appeals reached a contrary conclusion. In Hejira Corp. v. MacFarlane, 660 F.2d 1356 (10th Cir. 1981), the Court of Appeals found a Colorado act, similar to the model act, constitutional, but it laid substantial emphasis on the fact that the definitions in the Colorado act were different from those in the model act. In the Colorado act the definition of "drug paraphernalia," uses the words "primarily adapted, designed and intended" for drug use. The Montana Act uses the words "used, intended for use or designed for use." I believe that those courts holding the act to be vague have used a first amendment standard of vagueness rather than the commercial regulatory standard and that all courts which have found it necessary to painstakingly analyze each word in the statute have failed to give full effect to the requirement in the model act that intent be proved. Emphasis on precision of definition was proper in some of the earlier cases which made possession without intent to sell for drug use unlawful.3 In my opinion, if full effect is given to the intent requirement and if the proper standard is applied, such word-by-word analysis is not required.

As to the standard to be applied, there is no question that a law must give notice to a person of ordinary intelligence what is forbidden and what is not. But the standard to be applied to an act regulating commercial activities is different from that to be applied where the First Amendment is involved. In United States v. National Dairy Products Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 599, 9 L.Ed.2d 561 (1963), it was said:

In this connection we also note that the approach to "vagueness" governing a case like this is different from that followed in cases arising under the First Amendment. There we are concerned with the vagueness of the statute "on its face" because such vagueness may in itself deter constitutionally protected and socially desirable conduct. See Thornhill v. Alabama, 310 U.S. 88, 98 60 S.Ct. 736, 742, 84 L.Ed. 1093 (1940); NAACP v. Button, 371 U.S. 415 83 S.Ct. 328, 9 L.Ed.2d 405. No such factor is present here where the statute is directed only at conduct designed to destroy competition, activity which is neither constitutionally protected nor socially desirable.

It hardly could be said that the sale of paraphernalia to the drug trade is either constitutionally protected or socially desirable. In Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367 (1952), speaking again of a regulatory statute, the Court said:

But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.

(Footnote omitted.) Again, in United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877 (1947), the Court said:

We think that the language Congress used provides an adequate warning as to what conduct falls under its ban, and marks boundaries sufficiently distinct for judges and juries fairly to administer the law in accordance with the will of Congress. 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 ambiguous to define a criminal offense.

The Act says in no uncertain terms that a person may not sell drug paraphernalia with the intent that it be used for drug purposes. The Act in my opinion goes farther than do most laws in assisting a reader to know what the guidelines are. Thus, that portion of the Act which specifically lists things that may be intended for use with drugs points out to the reader where the danger lies. That part of the Act specifically listing the criteria for determining what is drug paraphernalia might more properly have been written in terms of intent because all of the considerations there expressed would be relevant in the determination of intent, but in any event the whole section tells the reader what to look for.

Certainly the definition of "drug paraphernalia" is not precise. It could not be. Certainly the legislature introduced some ambiguity4 into the law when it failed to state whose design it had in mind in the definition of "drug paraphernalia." But in the final analysis any lack of precision in statutory definition becomes relatively unimportant since under the Act no item is drug paraphernalia per se. A crime is committed only when the possessor intends to sell an article, however designed, for drug purposes. If some third person designed an article for drug use, the intent of that person would be, at most, an element which could be considered by a jury as bearing on a defendant's intent. Under this statute, a conviction does not stand or fall on any definition of drug paraphernalia. All of the criteria suggested in Section 2 of the Act are relevant to prove intent — and the lack of it as well. In any case involving intent it is the totality of conduct which must be considered.5 Thus a "roach" by dictionary definition is "the butt of a marijuana cigarette." It follows that a roach...

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4 cases
  • Stoianoff v. State of Mont.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • January 7, 1983
    ...45-10-106, because the plaintiff lacks standing to assert this claim, and affirm the other portions of the district court's opinion, 529 F.Supp. 1197. I. Montana enacted its drug paraphernalia law on April 21, 1981, to take effect on October 1, 1981. 1 The Montana Act ("the Act") is pattern......
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    • U.S. Court of Appeals — Fifth Circuit
    • July 29, 1982
    ...1982). Several district courts have upheld this language. Atkins v. Clements, 529 F.Supp. 735 (N.D.Tex.1981); Stoianoff v. State of Montana, 529 F.Supp. 1197 (D.Mont.1981); New England Accessories Trade Ass'n v. Tierney, 528 F.Supp. 404 (D.Maine 1981); Nova Records, Inc. v. Sendak, 504 F.Su......
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    • November 24, 1982
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    • December 30, 1981
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